Case 2012 Denmark

Denmark – Response to Case 2012

Helle Ina Elmer, Ph.D.
Special Consultant
Danish Ministry of the Environment
Nature Agency

1. Is there legislation concerning the initiative and/or the drafting of zoning plans and other equivalent documents by private entities? What is the procedure in that legislation and does it guarantee municipal control of planning powers? How is public participation organized in this procedure?

The Danish Planning Act allows for a municipal council to enter into a development agreement with the property owner for areas designated as urban zones, summer cottage areas or rural zones in the municipal plan. Certain cumulative initial conditions must be met such as that the agreement is voluntary for the private entity as well as the municipal council; the initiative lies with the private entity; and the private entity must be the property owner of the area for which the planning provisions are to be implemented.

The development agreement may solely aim to
1) achieve a higher quality or standard of the planned infrastructure in an area;
2) accelerate the local planning for an area designated for development through local planning by the framework provisions of the municipal plan, including urban regeneration, but for which local planning would contradict the provisions on the chronological order of development of the municipal plan; or
3) change or extend the development opportunities listed in the framework provisions of the municipal plan or the local plan for the relevant area on the condition that the property owner must only contribute to financing infrastructure that the municipality would not be required to establish.

The development agreement may solely contain provisions stipulating that the property owner in full or in part shall construct or pay the expenses for the physical infrastructural installations that are to be established inside or outside the area to implement the planning provisions. The projects that the agreement encompasses must be projects that fall within the scope of spatial planning in the Planning Act like establishing public recreational areas, establishing or enlarging grids for electricity, water etc., establishing access roads, paths, water channels etc. However, the agreement may not involve social infrastructure that falls within the reign of municipal area of responsibility like schools and kindergartens.

The property owner and the municipal council may also agree upon the preparation of the necessary spatial plans (the municipal plan supplement and the local plan) as well as the financial side of this work.

Although the development agreement is the result of an private arrangement between the property owner and the municipal council, the Planning Act states that the report accompanying a local plan proposal associated with entering into a development agreement shall contain information on how the content and design of the provisions of the local plan proposal are related to the development agreement.

The development agreement does not exempt the municipal council from its duties as planning authority and as such it is still the municipal council that adopts the proposed and the final plan, carry out the hearings of the public (minimum eight weeks), make the necessary public announcements etc.

Information that a draft of a development agreement exists must be publicized simultaneously with the publication of the proposal for the municipal plan supplement and the local plan. The municipal council’s entering into a development agreement must be adopted simultaneously with the adoption of the local plan in final form, and information on the adoption of the development agreement shall be publicized. Information on the development agreement but not its actual content has to be accessible to the public.

When publishing a proposal for the municipal plan supplement and the local plan the plan proposal must be sent to the relevant state, regional and municipal authorities, whose interests are affected by the proposal, and a written notice must also be given to 1) the owners of properties covered by the proposal and the tenants and users of these properties; 2) the owners of properties outside the area covered by the proposal and the tenants and users of these properties that would be substantially affected by the plan, in the opinion of the municipal council; and 3) the locally based associations and the like and nationwide associations and organizations having the right to appeal decisions.

When publishing a proposal for the municipal plan supplement and the local plan must be sent to the relevant state, regional and municipal authorities, whose interests are affected by the proposal, and a written notice must also be given to 1) owners of the properties governed by the plan and 2) anyone who, in due time, has submitted objections, etc. to the plan proposal.

2. Is there legislation concerning the involvement of private entities in the control and enforcement of public zoning and building regulations? Are private entities only allowed to perform assessment tasks or can they issue development permits and take follow-up enforcement measures?

The municipal council may empower a landowners’ association or, with the relevant landowners’ consent, a tenants’ association to grant exemptions from the provisions of a local plan if the exemption does not contradict the principles of the plan. The landowners’ or tenants’ association carry out the process of giving notice about the application.

The decisions of associations may be appealed to the municipal council. Legal proceedings to challenge decisions made by an association in accordance with authority delegated by the municipal council may not be instituted before the right to appeal to the municipal council has been exercised.

3. Is there legislation concerning the private management of urban infrastructures and public spaces? Is this legislation restricted to single infrastructures and spaces or does it provide a legal framework for the private management of entire neighbourhoods and other urban areas? Is the management of those neighbourhood and areas restricted to owners or neighbours associations or can concessionaires or other private commercial companies perform it? How does it guarantee municipal or public control of management decisions?

A local plan may contain provisions on establishing landowners’ associations for new areas with detached houses, industrial or commercial areas, areas for leisure houses or urban regeneration areas. The local plan may state compulsory membership for the owners of the new area and the right and obligation of the association to take responsibility for establishing, operating and maintaining common areas and facilities. Compulsory membership may not be imposed on existing owners within and outside the area of the local plan. The municipality ensures that the bylaws of the association do not exceed the aim and the framework of the local plan for specific area.

The members of the association may within the provisions of the local plan decide on the nature of the managerial work and also the appropriate costs. However, unless specific legal steps e.g. registration of an easement are taken by the landowners’ association to secure the payment by the landowners and the actual maintenance of the common areas the municipality is left with very few effective legal remedies to enforce the management of common areas by landowners’ associations.