Stricter local planning requirements for public buildings: In a new ruling, the Planning Appeals Board has cemented current board practice, according to which there are stricter requirements for the preparation of a new local plan (local planning requirement) and the clarity of the local plan's provisions for use when it comes to the construction of public buildings. In the specific case, the Planning Appeals Board found that a municipality's construction of a new station for emergency vehicles was a construction project subject to local planning requirements and that the applicable local plan did not contain sufficiently clear provisions on the construction project. The Planning Appeals Board thus set aside a building permit as invalid and, at the same time, stated in relation to its jurisdiction that it follows from the building regulations that, before a building permit can be granted, the municipal council must examine whether the proposed construction work is in contravention of, among other things, the Planning Act, which is why a building permit is an (indirect) decision that a construction project does not contravene the Planning Act, the legality or validity of which the Planning Appeals Board can assess.
The full text of the decision can be read here: Decision in appeal case concerning Syddjurs Municipality's exemption from local plan
Section 13(2) of the Planning Act – Local plan requirement
According to Section 13(2) of the Planning Act, a local plan must be drawn up before major subdivisions or major construction or civil engineering works, including demolition of buildings, are carried out. This is one of the key provisions of the Planning Act, and the purpose of the provision is to give the public a say and to ensure that major construction and civil engineering works are viewed in a broader planning context. Particularly in the case of public construction projects, it is established practice that, as a starting point, there is a fairly extensive obligation to prepare a local plan prior to the construction of buildings for public purposes.
The decisive factor in determining whether a project constitutes major construction or civil engineering work is whether it will result in significant changes to the existing environment. This follows from the preparatory work for the Planning Act and the practice of the Planning Appeals Board. In this assessment, the actual scope of the construction is given great importance, as are the specific visual, functional, and environmental consequences of the project in relation to the character of the area. Whether or not the project will have a positive impact on the area is not decisive. In this specific case, the Planning Appeals Board found that the construction of a new station for emergency vehicles constituted a significant change to the existing environment, which is why the project was subject to local planning requirements. Particular emphasis was placed on the fact that the area consisted of a mix of commercial and residential (multi-story residential buildings), regular noise nuisance from emergency vehicles (around the clock), and that the use would have significant functional and environmental consequences in relation to the character of the area. Finally, the Planning Appeals Board referred to the fact that, as a starting point, there is a fairly extensive obligation to draw up a local plan prior to the construction of buildings for public purposes.
Section 13(5) of the Planning Act – Exemption from local planning requirements
According to Section 13(5) of the Planning Act, there is no obligation to draw up a local plan if an existing local plan contains detailed provisions on the construction or civil engineering work. According to the practice of the Planning Appeals Board, there is a requirement for clarity and transparency in order for the 'detailed provisions' in a local plan to form the basis for the realization of construction or civil engineering works. The purpose of this is to give the public the opportunity to raise objections to the project during the consultation phase of the local plan. A local plan that designates an area or property for 'public purposes' cannot, as a starting point, form the basis for a project subject to local planning requirements unless the local plan specifies in detail the public purposes for which the area/property may be used. In the specific case, the local plan stated that the subarea in which the property was located could be used for offices, specialty shops, liberal professions, arts and crafts, and similar activities, as well as public purposes. The local plan did not specify the public purposes for which the area/property could be used. On that basis, the Planning Appeals Board found that the local plan did not specify the public purposes for which the property could be used, and therefore the requirement in section 13(5) of the Planning Act was not met.
If you have any questions regarding the provisions of the local plan or real estate in general, you are always welcome to contactCLEMENS Law Firm's real estate specialists.