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11 December 2015
The government recently submitted a proposal regarding amendments to the Planning and Building Act to a judicial preview. The proposed changes aim to shorten processing time for detailed development plans and area regulations by eliminating one of the instances in the court hierarchy. The judicial preview will be considered in a government bill, which will be submitted to Parliament for approval. The amendments are proposed to enter into force on June 1 2016.
This update looks at the main aspects of the proposal and how it should be implemented (for further details please see "New provisions on traffic noise levels").
The building or rebuilding of constructions is subject to detailed development plans and area regulations passed by Swedish municipalities through the Planning and Building Act. A municipality's decision to pass such regulations can be challenged through appeal in a relatively extensive court hierarchy. The first instance for appeal is the county administrative board, followed by the Land and Environment Court, the Land and Environment Court of Appeal and the Supreme Court. Although leave to appeal is required in all instances after the county administrative board, the process of appeals in matters of detailed development plans and area regulations is a potentially lengthy process. The current model for appeals is often criticised for delaying urgent development projects, which might also lead to projects being cancelled due to changes in the market while awaiting the detailed development plan to enter into force. The government proposal argues that this creates uncertainty among property owners, developers and investors, which has a detrimental effect on market competition, consequently increasing costs for production and, by extension, consumer living costs. The problem could be mitigated by excluding an instance in the court hierarchy.
When considering which instance to exclude to render the judicial process more effective, the government proposal makes some observations regarding the existing process.
The county administrative board has a number of functions relating to detailed development plans. It is involved in drafting detailed development plans, mainly through consultations with the municipality and coordination of inter-municipal questions of land use. It also makes ex officio reviews of detailed development plans whenever a new one is adopted or changes have been made to an existing plan. The board is also obliged to compile information regarding certain environmental aspects relevant to detailed development plans at the request of the municipality. Should the municipality fail to adopt a detailed development plan when ordered to do so by the government, the board must draw up a draft for the government to consider. Further, when challenged, the board must review the municipality's decisions on detailed development plans and area regulations. However, the board's intricate role can be problematic. When reviewing the municipality's decision, the board is constrained by the input that it has given earlier in the process. Third parties are naturally prone to question its function as an unprejudiced judge of the lawfulness of a decision in which it has played a vital role.
The government proposal takes into account whether any instances of court hierarchy are expendable. To comply with the European Convention on Human Rights, everyone is entitled to a fair trial in the determination of his or her civil rights. The county administrative board is not a tribunal in the prescribed sense, so if the land and environment courts were to be eliminated in the court hierarchy, the Land and Environment Court of Appeal would have to become available for all challenged decisions. This would increase its docket extensively, to the detriment of its role as a court of appeal. The government proposal does not appear to advocate the elimination of the Land and Environment Court of Appeal. The possibility for the Supreme Court to rule on detailed development plans has been subject for discussion in jurisprudence. However, the Supreme Court has been restrictive in granting leave to have such cases tried, and has not therefore contributed to the problem. Since Supreme Court rulings play an important part in creating precedents, the Supreme Court is not expendable in court hierarchy.
The proposal suggests that the board should be excluded from court hierarchy, as it has a difficult position in the judicial process and neither of the other instances can be disposed of.
The problem outlined in the proposition is widely recognised; however, the proposed remedy is debatable. Some opponents of the proposition argue that a consequence of the amendments would be that:
Although the opposition is not without merit, there appear to be no better alternative solutions. The only viable option to the proposed amendments seems to be an increase in the grants to the current instances. As the background research of the proposition shows, the turnaround times at each single instance are close to the government's objectives. Even if it is probable that increased grants will shorten the judicial process, it is unlikely that the effect would be comparable to that of an entire instance being circumnavigated. The question remains whether the merits of the counter-arguments outweigh that achievement.
As the docket of the land and environment courts is increased, the workload of the county administrative boards should be reduced. Some gains are inevitably lost as the board has already gained knowledge about the matter, which means that it can probably deliver a ruling quicker than the land and environment courts. However, this knowledge also creates a bias which has no place in a judicial review, leaving the argument regarding how the geographical distances would affect the ability to efficiently process cases. There are 290 municipalities, 20 county administrative boards and five land and environment courts in Sweden. While the proposed change is indeed a centralisation of judicial functions, neither the county administrative board nor the land and environment courts can rightfully be called regional institutions. The geographical is purely of economic interest and cannot be considered to offset the gains from excluding the county administrative boards. A lawyer should always consider whether a proposed change in the law has a detrimental effect on legal security. As the proposed solution leaves one court and two courts of appeal to try the merits of the matters in question, this is not an issue. The proposed amendment appears to be an appropriate solution, provided that the land and environment courts' increased workload is parried with an equal funding increase.
The exemption of the county administrative board from the system for judicial review of detailed development plans and area regulations may reduce the time spent waiting for a municipality's decision to gain legal force. The omission of an instance will also cut costs for the taxpayer as well as for those appealing. The latter will also be spared the risk of distrusting the impartiality of one of the public authorities ruling over the matter. The proposed amendments could make the Swedish market for land development more attractive for national and foreign investment alike. This is welcome news, not least for developers and end customers.
For further information on this topic please contact Rikard Lind or Mikael Wärnsby at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50) or email (firstname.lastname@example.org or email@example.com). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.
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