Case 2007 Denmark

The Polderadeel Case as described includes the construction of a new highway route (three alternative sites), development of a new industrial area, extension of an existing residential area, realization of a regional park and the establishment of wind turbines.

1. What kind of regulation applies to this type of development in Denmark?
The above mentioned activities will generally be subject to planning requirements according to the Planning Act. As regards new roads there is in Denmark a distinction between State roads and municipal roads. The establishment of a highway will in Denmark normally be considered a state issue. State roads are adopted by a specific Act of Parliament, cf. Section 14 of the Road Act. A specific road plan shall be adopted by the Minister for Transport and Energy for such major roads. In drawing up the road plan other planning provisions/guidelines for the area shall be taken into account and the municipal authorities shall be consulted. The establishment of other roads that are not approved by a specific act of Parliament shall apart from the road planning requirements also be subject to land use planning according to the Planning Act. The municipal plan shall include planning guidelines for roads and other transportation installations, cf. Section 11 a) of the Planning Act. Furthermore, a local plan is required cf. Section 13(2) of the Planning Act laying down details regarding the road project. An EIA is mandatory for highways and other major roads, whereas a screening is necessary for other road projects. Alternatives proposed by the developer and other relevant alternatives shall be examined in an EIA, including the zero-option alternative.

The development of a new industrial area and the extension of the existing residential area shall be subject to municipal as well as local planning. The municipal plan shall lay down guidelines for the siting of e.g. industrial areas with a view to ensuring an appropriate development of the area concerned. Furthermore, the municipal plan shall provide an outline for the local plan to be produced in such a case. The local plan may include more specific requirements as regards the type of industry, the size, location and form of buildings and other installations. If the area is not already designated as urban zone the local plan shall transfer the area from rural zone to urban zone. This can only be done if it is in accordance with higher level plans, i.e. foreseen in the municipal plan (or regional plan until 2009). Specific restrictions on planning for new urban and industrial areas apply in the Greater Copenhagen area, cf. Section 5j of the Planning Act. Other restrictions e.g. with respect to nature protection interests etc. must also be taken into consideration.

The establishment of a regional park should also be in accordance with the municipal plan. A municipal plan shall include guidelines for recreational areas. If the regional park is not foreseen in an existing municipal plan, an amendment to the plan shall be adopted. The municipal plan shall also provide a sufficiently precise framework for the drawing up of a local plan. A local plan is needed if the establishment of the park will lead to a significant change in the existing environment, cf. Section 13(2) of the Planning Act.

The establishment of wind turbines is subject to the 1999 national planning directive regarding planning and zoning for wind turbines. As a main rule wind turbines can only be established in areas specifically designated as wind turbine areas in a (regional or) municipal plan. Furthermore, certain distance requirements apply, e.g. min. 4xtotal height to nearest dwelling apply. Specific assessment requirements apply if a wind turbine is to be located closer than 500 m from a dwelling. For a group of wind turbines a local plan is normally required. The local plan may replace the rural zone permit requirement. An EIA is mandatory for the establishment of groups of more than three wind turbines or turbines above 80 m total height. In other cases a screening shall be carried to determine whether a full EIA is necessary.

2. Do supra local authorities have the regulatory power regarding the location and realization of provisions like highways, industrial areas and wind turbine parks?
As mentioned above certain major roads are in Denmark considered State roads meaning that it is the Minister for Transport and Energy that is the competent authority. Decisions on the establishment and routes of such major roads are taken by a specific Act of Parliament – thus surpassing municipal planning powers. Planning for the development of new industrial or residential areas in Denmark may not contradict higher level plans. Specific restrictions regarding planning in coastal areas and in the Greater Copenhagen area are laid down in the Planning Act and the Minister for the Environment may issue national planning directives. Furthermore, the minister has the power to raise objections against municipal and local plans in safeguarding national interests, cf. Sections 28-29 of the Planning Act. A specific national planning directive has been issued regarding wind turbines.

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?
In Denmark the public authorities do not have a general power to force developers to contribute to the costs of public amenities. There is a very specific possibility for the municipal authorities to request payment from developers to a parking fund with purpose of establishing of parking facilities. It is only possible to request payment in cases where the authorities are granting an exemption from the requirements for establishing necessary parking facilities on a property as laid down according to the Building Act or in a local plan, cf. Section 22(6) of the Building Act and Section 21(2) of the Planning Act. Certain restrictions apply for the public use of the parking fund, i.e. that new parking facilities should be established within a reasonable distance from the contributing properties. It is possible that similar arrangements on payment for public facilities can take place where an exemption from a general rule or requirement is granted. In such cases there should be a clear link between the exemption granted and the public amenity in question.

4 In which way do municipalities have the power to regulate the management of built residential areas?
A local plan can include provisions regarding the design, use and management of unbuilt areas – including “green” areas in residential areas, cf. Section 15(2) of the Planning Act. The provisions may only apply to the establishment and management of new facilities relating to the planned development. With respect to new built areas specific management requirements can be laid down in local plan for an association of owners (grundejerforening) to which the owners are obliged by the local plan to be a member, cf. Section 15(2) of the Planning Act. The local plan may stipulate a duty upon the owners association to establish and manage common areas and installations within the planned area. Generally, management requirements cannot be laid down for existing built areas.

By Helle Tegner Anker
Professor of law, Royal Veterinary & Agricultural University, Copenhagen