The Law on Land 2024 recognizes the legal validity of marine reclamation activities and on April 16, 2024, the Government promulgated Decree 42/2024/ND-CP detailing the provisions of the Law on Land 2024 on this activity ("Decree 42"). Here, ATA will summarize the important contents of Decree 42.
1. Basic conditions for carrying out reclamation operations
The Law on Land 2024 stipulates that marine reclamation activities must be established as an investment project or maybe an encroachment item of an investment project ("Reclamation Project"). Accordingly, Decree 42 specifies the basic conditions for the implementation of the Reclamation Project as follows:
- It must aim to create a land fund to be used for socio-economic development, disaster prevention, and adaptation to climate change.
- Approved in the form of a written decision/approval of the investment policy of an independent project or a work item belonging to an investment project.
- The location, area, boundaries, and coordinates of the area where the Reclamation Project is implemented must be reflected in both provincial and district land use plans.
- When formulating and approving detailed construction plans of Reclamation Projects, land funds must be allocated and set aside for the construction of public infrastructure works (including entrances to the sea) to ensure people's and communities' access to the sea.
2. Land allocation, land lease, allocation of sea areas for sea reclamation
The Law on Land 2013 has not recognized the legal validity of reclamation; meanwhile, Decree 11/2021/ND-CP stipulates the allocation of water surface areas of sea areas without regulating marine leveling activities and land allocation/lease for artificially formed land from reclamation activities.
Accordingly, Decree 42 provides detailed guidance on land allocation and lease activities for land formed from reclamation activities based on two basic principles:
- The State shall decide to allocate the sea area for reclamation simultaneously with land allocation or land lease;
- The order/procedures for land allocation and lease of land attached to marine areas shall correspond to the order and procedures for land allocation, lease of land for rice cultivation, protective forest land, and special-use forest land for other purposes.
To clarify, Decree 42 guides several related issues as follows:
- The basis for the State to decide to allocate the sea area is the approved Reclamation Project. Documents proving the approved Reclamation Project shall be submitted by the Investor together with the application for land allocation or land lease.
- Investors of Reclamation Projects are not required to pay money to use the sea area to carry out reclamation activities.
- The time of determination of land users must put land into use is counted from the date of issuance of the notice of acceptance results for all or part of the completed area of the reclamation according to the progress of the reclamation project.
3. Dealing with reclamation costs
Decree 42 stipulates that investors of Reclamation Projects must make dossiers of requests for settlement of reclamation costs and send them to specialized construction agencies affiliated with provincial-level People's Committees for appraisal within 180 days from the date of completion of the reclamation. Accordingly, in case the settled reclamation cost is less than the reclamation cost already included in the total development cost, the investor must pay the difference, in case the settled reclamation cost is greater than the reclamation cost already included in the total development cost, the difference shall be included in the cost of the project.
4. The issuance of certificates of land use rights, ownership of houses and other property attached to land ("Certificates")
Investors of Reclamation Projects shall be granted certificates for the land area formed from reclamation activities after:
- Have fulfilled financial obligations on land; and
- There is a notice of approval of the acceptance results of the completion of the reclamation according to regulations.
The acceptance and completion of the reclamation can be carried out for part or the whole of the reclaimed area according to the approved project schedule and presided over by the Department of Natural Resources and Environment.
For the land area not in the reclaimed area, the investor will be issued a Certificate after fulfilling the financial obligation on the land.
5. Handling transition cases
- The Reclamation Project has been approved in writing and the investor has submitted a dossier of requests for allocation of the sea area before the effective date of Decree 42 but there is no result of settling the dossier, the investor is selected to carry out the order and procedures as prescribed by Decree 11/2021/ND-CP of the Government or specified in Decree 42.
- The Reclamation Project has been approved in writing and the investor has been assigned the sea area for reclamation but has not been allocated or leased land, the investor may continue to carry out the reclamation and not have to pay money to use the sea area for the remaining time; to request the People's Committee of the province to allocate land, leasing land without auction of land use rights and implementation of reclamation projects under Decree 42.
- If the Reclamation Project has been approved before April 1, 2024, the investor may allocate land, lease land, not auction land use rights, and not bid for projects with land use to continue implementation.
- Projects that have been approved and have subdivision or detailed plans approved before the effective date of Decree 42 may continue to comply with the approved plans but must have plans to ensure people's access to the sea, and community at the request of the provincial People's Committee.
Decree 42 takes effect from April 16, 2024./.
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