Austria – Response to Case 2007
Polderadeel-Case in the Austrian Planning System
1. What kind of regulation does apply in your country in a case like this?
Although the legal aspects of the case described cannot be reduced to one law subject in Austria, the spatial planning laws of the nine provinces (“Länder”) will be the most relevant legal subjects. The decision to change land use from agriculture use to other utilisation purpose is an issue in the central focus of spatial planning issues in Austria. In addition industrial uses and projects will require specific business permits, and there are several types of environmental permits depending on the concrete location and project.
In Austria comprehensive spatial planning is a task within the autonomous sphere of competence of the provinces (“Länder”), being restricted by the responsibilities for sectoral planning activities on national level. Consequently the National Government and the nine Länder and even the municipalities carry out parallel spatial planning activities. Due to Austrians federal structure the National Government does not have the competence for comprehensive spatial planning activities. Comprehensive spatial planning is the responsibility of the Länder, but it is restricted by sectoral planning measures of the federal government. Referring to the constitutional regulations of planning competences, the Länder passed spatial planning laws in the 1950s and 1960s, which are the legal background for zoning activities on the municipal and regional level.
The most important instrument of spatial planning on municipal level is the land use plan, which determines in essence the possible use of properties in a municipality. It describes the most rational use of land for the whole territory of the municipalities and divide the territory into different utilisation categories, namely building land, green land, traffic area, and special utilisation categories. These main classification categories are further subdivided into various types of utilisation. For example, building land is further subdivided into residential areas, industrial areas, center areas, business areas and so on.
The land use plan is binding for land owners and it influences the possibilities of utilisation of land owners for the future. The fixing of a building land zone in a land use plan is a precondition when applying for a building permit according to the building codes. If a lot is not zoned as building land the construction of buildings is not allowed. The land use plans are drawn up by the municipalities within their autonomous responsibility. It is to mention that spatial plans on local level are subordinated to supra-local plans and they have to be in conformity with their contents.
In the case described it will be neccessary that the three sites will be zoned as industrial area, residential areas and special uilization category for wind turbines.
2. Do supra local authorities have the regulatory power regarding the location and realization of provisions like highways, industrial areas and wind turbine parks?
In Austria the national government has the regulatory power for planning and fixing the location of highways and other infrastructure-projects with a supra-local dimension. The subordinated public authorities have to adapt their planning instruments to the national planning acts. The national government has also the legal possibilities for the realisation of highways (expropriation will be possible).
The zoning of specific locations for industrial areas and wind turbine parks will be a task of the municipal planning authority.
The Länder government is responsible for preparing supra local development plans, which are – in principle – binding for municipalities when zoning building land. The competence oft the Länder government is restricted to zoning acitivities, in which supra- local interests are absolutely dominating. If these preconditions are fulfilled in context with industrial areas and areas for wind turbine parks will be not easy to answer and will depend on the concrete project. But also in these cases a corresponding zoning category in the local land use plan will be necessary. In practice the supra local panning documents of the Länder do not contain areas for wind turbine parks and only in rare cases industrial areas.
According to the spatial planning laws the municipalities have no legal power regarding the realization of industrial areas and wind turbine parks (for these purposes expropriation is not allowed).
3. Do public authorities have the power to force developers, who own the land, to contribute in the cost of public amenities? What are the limits in this respect?
The public authorities have very limited power to force developers to contribute in the cost of public amenities in the Austrian planning system. The spatial planning laws do not contain regulations, which give the planning authorities the possibility to share the increase of value of building land influenced by zoning activities with land owners. However, in the last years the traditional planning approach (zoning by the public planning authority, implementation by the land owners) has changed in practice. Some municipalities reached specific financial agreements with investors before the zoning process was finished.
4. In which way municipalities have the power to regulate the management of built residential areas?
The Austrian legal system contains no specific legal instrument for this purpose. In practice some municipalities (e.g. Vienna) set up informal organisations with the goal of an improved cooperation and coordination and information between residents, land-, building- and flat-owners and the public authorities.
Arthur Kanonier / Karin Hiltgartner
Vienna, 5th February 2007