EXTENDING THE DURATION OF CREATION FOR NATIONAL PLANNING UP TO 36 MONTHS

On August 12, 2023, the Government promulgates Decree 58/2023/ND-CP ("Decree 58") amending and supplementing a number of articles of Decree 37/2019/ND-CP ("Decree 37") detailing a number of articles of the Law on Planning. ATA Legal Services would like to summarize and analyze some notable contents of Decree 58, specifically as follows:

1. Officially promulgate the mechanism for mobilizing and using resources to support planning activities

The Law on Planning 2017 allows and encourages domestic and foreign organizations and individuals to support resources for planning activities but still ensure objectivity, publicity, and transparency. However, the Law on Planning 2017 and Decree 37 do not specify mechanisms and policies for mobilizing and using resources to support the planning activities of domestic/foreign organizations and individuals. In fact, the investors that have financed the planning process in the popular form of financing with planning products (usually planning tasks and planning plans) or funding with funds to carry out planning for the project implementation area in the process of preparing for project investment. This invisibly leads to a problem that the planning product is straightforward to build or adjust according to the subjectivity and will of that investor.

After the promulgation of Decree 58, it has more specifically stipulated the mobilization and use of resources to support planning activities, which recognizes the forms of resource mobilization and principles in mobilizing these resources, specifically as follows:

a. Regarding resources to support planning activities: Decree 58 recognizes many types of resources to support planning activities, including monetary and in-kind grants, from Vietnamese and foreign organizations and individuals, specifically as follows:

• Official Development Assistance (ODA), concessional loans and non-refundable aids not falling under official development assistance (applicable to resource support entities being foreign organizations and individuals for Vietnam);
• Funds of Vietnamese agencies, organizations, and individuals;
• Research results of agencies, organizations, and experts; sponsor prizes for organizations and individuals whose planning ideas are selected on the basis of the results of the planning idea selection examination organized by the planning agency (if any); input for organizing conferences, seminars, training, research, surveys, training.

b. Principles of receiving support resources: The following principles must be ensured/met:

• Ensure objectivity, publicity and transparency; right goals and purposes; economical, efficient;
• Voluntary; for the common benefit of community and society, not for profit;
• Not receiving resource support from domestic and foreign organizations and individuals for elaboration and appraisal of planning tasks.

The introduction of principles, which emphasize the principle of objectivity, for the common benefit has shown the goal of ensuring the minimization of group interests and local interests of organizations and individuals involved in the process of planning development and appraisal. However, in order to implement this principle, we believe that there is still a need for specific regulations on criteria and conditions for organizations and individuals to finance the planning as well as clearly define methods or bases for evaluating and approving the receipt of funding from organizations, and individuals.

2. Contents of provincial planning require the formulation of a list of projects expected to be prioritized for implementation in the province

Accordingly, Decree 58 requires provincial planning to determine the list of projects expected to be prioritized, not just give principles and arguments to build this list as before. This will increase the seriousness and prudence in the planning process, increase the commitment to implement and implement the planning of both authorities and investors, and avoid suspended planning or indiscriminate adjustment of planning.

3. Supplementing responsibilities of competent authorities in formulation, approval, and appraisal of planning

Decree 58 requires authorities of organization of creation and authorities of creation to national plannings (national master plans, national sectoral plannings, etc.), regional planning, provincial planning, etc…. as a rule, they must be responsible for the accuracy of data, documents, diagram systems, maps, and databases in planning dossiers, ensuring compliance with the provisions of the law on state secrets and other relevant laws.

In addition, Decree 58 also sets out higher responsibilities for members of the Appraisal Council, not only within the "individual" of members but also related to the responsibilities of the agency or unit in which that member is working; specifically, members of the appraisal council shall be responsible to the chairman of the planning appraisal council, heads of agencies where members of the planning appraisal council work and before law for their opinions on appraisal dossiers submitted for planning appraisal.

These regulations aim to enhance the responsibilities of authorities of organization of creation, authorities of creation, and responsible individuals in collecting, reviewing, evaluating data, evaluating, and appraising planning in order to ensure efficiency and objectivity in the planning process.

4. Extending the duration of the creation

Decree 58 extends the planning time limit longer than specified in Decree 37, specifically as follows:

Trên thực tế, thời hạn lập quy hoạch dù đã được ghi nhận trong Nghị định 37 nhưng thời hạn thực tế thường kéo dài hơn rất nhiều. Việc điều chỉnh kéo dài thời hạn theo chúng tôi là phù hợp với thực tiễn.

5. Clearly stipulate the process of formulation and promulgation of planning implementation plans

The Law on Planning 2017 stipulates: the planning implementation plan is promulgated after the planning is decided or approved and there are no regulations on the order, procedures, or competence to promulgate and approve the planning implementation plan. This issue is clarified in Decree 58, specifically as follows:

5.1. Regarding the authority to approve plans

Competence to approve planning according to the scope and level of the planning:

• The Government shall approve the implementation plan of the national master plan, national marine spatial planning, and national land use planning;
• The Prime Minister shall approve plans for the implementation of national sectoral planning, regional planning, and provincial planning;

5.2. Regarding the order and procedure for issuing the plan

a. For national and regional planning

• The elaboration of plans for implementation of national master plans, regional plannings and national sectoral plannings shall be the responsibility of focal agencies being ministries and ministerial-level agencies.
• Accordingly, the focal point agency must send the draft for comments of relevant ministries, ministerial-level agencies and localities to finalize the draft before officially submitting it to the Government or the Prime Minister for approval and promulgation.

b. For provincial planning

- The formulation of the provincial planning implementation plan shall be the responsibility of the focal agency for the formulation of the provincial construction planning (Department of Architectural Planning) under the People's Committee of the province.

- The collection of comments on the draft provincial planning is divided into 2 levels and implemented in sequence:

• 1st time – after the draft: collect opinions of departments, branches, district-level People's Committees, and relevant agencies and organizations (if any) in the area;
• 2nd time – after receiving comments and completing the draft from the 1st opinion collection: collecting opinions of ministries and ministerial-level agencies;

- After receiving comments and completing the draft plan, the People's Committee of the province shall submit it to the Prime Minister for consideration and promulgation.

Decree 58 takes effect from August 12, 2023. A planning that has been approved for planning formulation before the effective date of Decree 58 without submitting comments or submitting it for appraisal is not required to re-approve the planning task.