II. PLANNING CONTENT AND PROCESS ACCORDING TO THE VALID ACT
1. Basic principles of the Act and basic tasks of different plans
The objectives of the Planning Act of 1992 are to ensure that planning synthesises the interests of the society regarding future spatial structure and land use, and contributes to the protection of the nature and environment of the country in order to secure sustainable development of the society with respect for peopleís living conditions is secured. Obviously the planning process is highly political dealing with shaping the future human environment based on public debate and the balancing of different interests.
The planning system is based on the principle of framework control, meaning that the plans at lower levels must not contradict planning decisions at higher levels. But the objectives and the content of planning are different at the three administrative levels.
The basic element of the planning system is division of the country into three zones - urban, recreational and rural. In the urban and recreational zones, development is allowed in accordance with the current planning regulations. In the rural zones covering about 90% of the country, development or any change of land use for other purposes than agriculture and forestry are prohibited or subject to a special permission according to planning and zoning regulations. The change of rural areas into urban zone requires production of a binding local plan, followed by a land use tax to be paid by the landowner.
National planning guidelines
At the national level, the spatial planning policies of the Government are mainly expressed in the mandatory National Planning Report which the Minister of the Environment and Energy submits to the Parliament (the Folketing) after each national election. The national planning report can thus signal the proposed planning programme of the new Government.
The objective of the national planning report is to provide guidance in a persuasive way to the counties and municipalities and to present national planning policies on specific topical issues. It is not the purpose of the national plan to manage in detail or approve the planning decisions of the counties and municipalities.
At the county level the regional plans include policies, maps and land use guidelines for the total area of the county. The plans are established by an overall assessment of future developments in the region.
Regional guidelines establish the overall goals for development for a 12-year period:
- urban development
- the countryside
- nature and environmental protection
- large technical facilities
The Planning Act determines the topics for which binding guidelines may be established in a regional plan. The degree of detail must not be greater than is required by national and regional interests. This issues maximum latitude for the municipalities in their planning. The construction activity of public authorities must not contradict the regional plan.
The report (regional plan) must account for the premises of the plan which in practise means
- describing the existing state of the region (nature, demographics, regional economy, transport and supply pipelines, etc.),
- presenting any calculations and forecasts of expected trends, and
- presenting the objectives of planning and explaining the choices made.
The report must also describe the expected order for the implementation of the plan. This report is intended to be informative. The purpose is to create the basis for a public debate during the public comment period before the County Council adopts the plan.
The municipalities have a central role in planning. The main principle is solving the local problems locally. The plan comprises the necessary link between national and regional planning and preparation of local plans on the use of each individual property. Municipal plans include a general structure and the framework for local planning (policies, maps and land use regulation for the total municipal area).
The plans are prepared on the basis of an overall assessment of the present and future land use (designation of residential areas, commercial and industrial areas), transport and other services and recreational areas. Municipal planning in co-ordination with sector planning and budgeting can be used as an action plan for the overall municipal activity.
The municipalities have the right and duty to prepare binding local plans (including plans with maps and detailed land-use regulations for a minor neighbourhood area) and to ensure their implementation.
A local plan can regulate many conditions related to land-use, construction and architectural features. Local plans are binding for the landowners but they regulate only future transactions.
2. Planning obligation, client/producer of plans
The Minister of Environment and Energy is responsible for the overall national physical planning and for producing the investigations necessary for this. After each election to the Parliament (Folketing), the Minister shall submit a report on national planning to the Folketing Committee on the Environment and Regional Planning.
The reports are prepared by the Spatial Planning Department of the Ministry of Environment and Energy based on co-operation with other Ministries and national Agencies.
National interests sometimes require intervention in decisions that the local authorities cannot or will not make on the location of projects vital for the society. The Minister can issue national planning directives to carry out specific major projects and to promote specific trends. These directives issued but a few times each year, are binding for the counties and municipalities. A directive can require the counties and municipalities to account for a specific theme in the future planning such as the location of afforestation areas in regional plans or windmills in municipal planning.
The main method of controlling the local autonomy of the planning process is by establishing regulations governing the use of the Planning Act. In special circumstances the Minister of the Environment and Energy may order the County or Municipal Council to produce a plan with a specific content to ensure overall national interests. This provision is not used often, because negotiated solutions are normally reached, but it can be used, e.g. for locating a state facility.
Calling-in a plan
The Minister of Environment and Energy may in special circumstances decide to assume the authority granted to County or Municipal Councils by calling-in a planning proposal prepared by the councils. The Minister then may make the necessary changes or may negotiate changes. In practice this power is seldom used, and only for proposals for municipal plans, since the Minister can veto a proposal for a regional plan or a binding local plan during the public comment period.
Veto of regional plan proposals
The Minister of the Environment and Energy may veto a proposed regional plan on behalf of the state as a whole. Such a veto must be submitted during the public comment period, which is at least eight weeks. A committee of state civil servants therefore assesses the planning proposals to determine whether a veto is required and to ensure that the comments of any state authority on the proposed plan are submitted to the County Council within the public comment period. If the proposed plan is vetoed, the County Council cannot adopt the plan in final form before agreement is reached between the Minister of the Environment and Energy (acting on behalf of the state authorities involved) and the County Council.
Veto of local plan proposals
A state authority can veto a local plan proposal based on the special interests it administers. The Municipal Council must reach an agreement with the state authority before adopting the plan. The parties may bring unsolved issues before the Minister of Environment and Energy for a final decision. In such a case the Spatial Planning Department prepares the basis for the Ministerís decisions.
Each county shall have a regional plan. In the cities of Copenhagen and Frederiksberg the municipal plan also serves as the regional plan.
Once every 4 years (the regional election period) the County Council must prepare and adopt a revised regional plan. In relation to the current plan, new issues can be taken up, the premises ca be updated and new political assessment and priorities can be included.
At any time between the main revisions the County Council can prepare regional plan supplements that complement or amend an adopted regional plan.
The regional plan is elaborated by the county authority and adopted by the County Council.
In addition the County Council now have to elaborate a strategy for the implementation of Local Agenda 21 (new provision, see below).
In February 2000 the Parliament adopted a change in the Planning Act concerning municipal planning. In the previous provision the municipal plan had to be revised every 4 years (the local election period). In the new provision the Municipal Council must elaborate a strategic municipal plan. The plan must be published in the first half of the election period. Then in the strategic plan the Municipal County must assess the necessity to change the plan and then in which direction.
Furthermore, in the new provision it is stated that the Municipal County must publish a strategy of the implementation of Local Agenda 21 in the same period as regarding the municipal plan.
The Municipal Council can if needed prepare supplements to the municipal plan. This is typically done in connection with projects the Municipal Council wants to promote if the necessary local plan cannot be implemented without adjusting the framework provisions of the municipal plan.
The municipal plan is elaborated by the municipal authority, approved by the County authority and adopted by the Municipal Council.
Local plans have numerous uses and therefore, the content and extent of local plans vary widely. A local plan regulates only the future conditions and thus does not require property owners to act. The regulation cannot give rise to claims for compensation. Nevertheless, in special cases the Municipal Council may expropriate private property to promote the aim of the plan.
Mandatory local plan
A local plan must be adopted before large projects are initiated or if the existing surroundings are to be changed substantially, including the project size in relation to the size of the community where it is located. A local plan is amended by adopting a new local plan. The Municipal Council has the right to prepare or amend a local plan whenever it considers this appropriate.
The national and regional level can veto a local plan.
3. Environmental Impact Assessment (EIA) and Strategic Impact Assessment (SIA) in the planning process
Environmental Impact Assessment (EIA)
EIA is an integrated provision of the Planning Act based on a European Union directive. The directive establishes that public and private project that are likely to affect the environment significantly must be subject to environmental impact assessment and public consultation before they can be initiated.
The purpose is to ensure that all known environmental effects are considered in advance and that all necessary measures have been taken to protect the environment. The counties normally carry out this assessment as part of regional planning, the state does this through a national planning directive for projects enacted by a specific act.
Strategic Impact Assessment (SIA)
SIA is not yet developed and as such not regulated by the Planning Act. However, the present and subsequent National Planning Reports from the Minister of Environment and Energy include a SIA.
4. Main rules of co-operation and public participation
The Planning Act says clearly that all proposals for plans are subject for an 8-week period of public debate. A pre-public debate may take place in relation to a proposal for a local plan, meaning a period of debate before the actual proposal is presented. Concerning proposals for municipal or regional plans or adjustments of these an 8-week pre-public debate period is mandatory.
Those influenced by the future plan must be heard, including neighbours. No plan must be in contrast to a plan on a higher level. Grass-root organisations must also be heard. Finally, those having an interest in the proposal may ask for a copy and may send in their comments. This also applies to persons from other municipalities or counties. In the process the councils may decide to invite to a public debate meeting.
Both the proposal and the final plan must be announced in daily newspapers
The Councils must react in relation to the rights of the owners. Objections from an administrative level above the level issuing the proposal must be dealt with before the proposal can be adopted.
Settling of disputes may be done at all levels. However, the Minister has the final word if a dispute cannot be settled.
Denmark has signed the ESPOO convention, meaning that certain larger projects may be heard in neighbouring countries.
5. Approval / concordance of plans.
Plans must be concerted before the final adoption can be made. If such a process results in alterations of such a degree that one can speak about substantial change of the plan, a new public debate must take place.
6. Supervision of plans/prerequisite for enforcement
Supervision of plans is mandatory at each administrative level. Regional level supervises local and municipal plans. The Ministry supervises regional plans. The supervisor may dispute a plan if the plan is in contrast to a plan above its own level.
7. Enforcement and validity of plans
The Council of the Municipality or the Region gives legal power to a plan by adopting it. The Planning Act has clauses giving the political/administrative level power in relation to implementation of a plan.
One may appeal an enforced plan to the Nature Preservation Board of Appeal but only issues of a procedural and judicial character there. The more political content of a plan cannot be appealed.
A local plan is a judicial plan regulating the possibilities of private persons for land use. Existing conditions are not regulated but if one would like to build or make changes to land use then the local plan must be followed.
An ordinary citizen is not bound by municipal plan. This is the plan of the Council and the Council must work for the implementation of their plan. The same is the case with regional plans.
Alterations/changes of enforced plans
The Municipal or Regional Council can initiate alterations of their plans. Consent to alterations follows the same procedure a plan proposal goes through.
Validity of plans
A local plan is valid until it is changed. Both municipal and regional plan must be reviewed every fourth year.
8. Legal impact of different plans
As municipal and regional plans have a cross-sectoral character they have an impact on both administrative bodies and their respective sector plans. However, co-ordination of plans takes place during the preparation phase of the plan.
Local plans have an impact on property owners by regulating their rights.
9. Compensation for damage caused by planning restrictions
Local planning is in general the right of the Council, free of compensation. However, the Planning Act does have clauses giving a property owner certain rights after which the Municipality may be forced to buy his property.
If expropriation is necessary, the compensation rate will be based on marked value.
10. Obligation to review enforced plans
Municipal and regional plans must be reviewed every fourth year and the municipal or regional report must be sent to the County and the Ministry respectively.
11. Everybodyís building right in rural areas
In rural areas only farmers have the right to build in relation to their farms, woods, greenhouses or in relation to fishery. All other building activity has to be based upon an application to the regional authority.
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