Application of Directive 2001/42/EC in Spatial ...

Application of Directive 2001/42/EC in Spatial Planning in the Enlarged European Union: Key Challenges and Opportunities International seminar organised by the REC in co-operation with the European Commission/DG Environment, Szentendre, 14 – 16 April 2004 Paper for the presentation “Designing effective public participation system for SEA in spatial planning: Lessons from Austria” By Ralf Aschemann, Austrian Institute for the Development of Environmental Assessment, Elisabethstrasse 3/3, 8010 Graz, Austria, Tel. +43 / (0)316 / 318198 [email protected], http://www.anidea.at The first sections of this paper use parts of my paper written for Module 4 of the SPECTRA project of the Slovak University of Technology, Faculty of Architecture, EIA Centre (Aschemann, 2000).

Table of Contents Spatial planning in Austria Instruments of the Austrian spatial planning system, focussing on Styria Procedures according to the Styrian Spatial Planning Act The SEA Directive’s requirements regarding public participation Austrian pilot SEAs Participation requirements and key questions Selection of international legislation concerning public participation Actors of SEA Directive Lessons learned from land-use plan SEAs concerning public participation Concluding remarks

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References Annex: Possible questions for the working groups

List of Tables Table 1: Spatial planning acts of the Austrian provinces Table 2: Spatial planning instruments at the federal and the Styrian level Table 3: Austrian pilot SEAs Table 4: Methods of public involvement (selected from Sadler, 2001) Table 5: Methods of public involvement (selected from Hanusch, 2002) Table 6: Some characteristics of the three Austrian land-use SEAs

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Spatial planning in Austria The implementation of environmental demands into spatial planning reaches back into the Seventies of the last century, when spatial planning became an important topic in Austria. A new degree of environmental consciousness led to Spatial Planning Acts, considering environmental protection and ecological concerns to a considerable and certain extent. As a member of the European Union (EU) since 1995 Austria must articulate more emphatically than ever its spatial development interests at the European level. For its spatial planning policies Austria has to consider, that it is a frontier country, an Alpine country, a landlocked and a transit country. The measures corresponded of Austrian authorities have to take into account relevant influences of European spatial policies. The horizontal development co-operation with neighbour countries has to be intensified according to the enlargement of the EU, effective with 1 May 2004. In Austria spatial planning is a competence of the (nine) provinces, not of the federal government. The federal government may issue sectoral regulations for spatial planning in areas that come within the responsibility of the national government according to Austria’s constitution Consequently, there exist nine different Acts on spatial planning (please note: Vienna’s Act is called different, because it is both province and city) in Austria, see the following table. Name of the piece of legislation [in German] Burgenländisches Raumplanungsgesetz Kärntner Raumordnungsgesetz NÖ Raumordnungsgesetz OÖ Raumordnungsgesetz Salzburger Raumordnungsgesetz Steiermärkisches Raumordnungsgesetz Tiroler Raumordnungsgesetz Raumplanungsgesetz (Vorarlberg) Bauordnung für Wien

Name of the piece of legislation [in English] Spatial planning act of Burgenland Carinthian spatial planning act Lower Austrian spatial planning act Upper Austrian spatial planning act Spatial planning act of Salzburg Styrian spatial planning act Tyrolean spatial planning act Spatial planning act Vorarlberg Viennese building code

Table 1: Spatial planning acts of the Austrian provinces

Instruments of the Austrian spatial planning system, focussing on Styria The instruments of spatial planning are the provincial spatial planning programme and the regional spatial planning programme (every Austrian province is subdivided in regions/districts, e.g. there are 16 regions in Styria, its capital Graz has a special constitution as a municipality). At the local level the municipalities (local authorities) are responsible for the three local spatial planning concepts: Here are to name the local development plan, the zoning plan (both for the whole municipality) and the building regulation plan (for a special site and/or project). In Styria there exist 543 municipalities plus its capital Graz, that means, every municipality is obliged to set up the plans mentioned. Beside the spatial planning programme for the province and their regions it is mandatory to set up or revise sectoral development programmes (e.g. for waste management, forestry, air quality) for the province and for the regions. Analogue to the supralocal level it is possible to set up sectoral development programmes for every municipality like a transport or an energy plan. All plans are valid only for a specific time period and have to be revised regularly, e.g. every five years in case of the zoning plan. -2-

The following table presents the different spatial planning instruments in Austria and - as an example for a province - in Styria. Administrative area Republic of Austria (federal level, 9 provinces) Province of Styria (right of legislation & execution) Region/District in Styria (there are 16 regions excl. Graz) Municipality (Community or City) Local Level (there are 543 municipalities within Styria plus the capital Graz)

Corresponding spatial planning instruments Austrian Spatial Planning Concept Sectoral regulations from the ministries Provincial spatial planning programme Sectoral development programmes Regional spatial planning programme Sectoral development programmes Local development plan Local sectoral development programmes Zoning plan Building (regulation) plan(s)

Table 2: Spatial planning instruments at the federal and the Styrian level Please note, that the basis for the permission of building projects is according to the Styrian Building Code and not according to the Styrian Spatial Planning Act.

Procedures according to the Styrian Spatial Planning Act In the following two procedures according to the Styrian Spatial Planning Act will be briefly described, one concerning the supralocal and the other concerning the local level. Procedure for setting up a Regional Spatial Planning Programme Step one: Step two: Step three: Step four: Step five: Step six: Step seven: Step eight:

Decision of the provincial government to set up/to revise a Regional Spatial Planning Programme (RSPP) Federal authorities, regional authorities and communal authorities as well as interest lobbies (e.g. Chamber of Commerce, Chamber of Labour) publish their planning interests Spatial planning authority of the provincial government prepares a draft of the RSPP in co-operation with the region/regional authorities concerned Federal authorities, regional authorities and communal authorities as well as interest lobbies can comment on the draft Spatial planning authority of the provincial government revises the draft of the RSPP in co-operation with the region/regional authorities considering all comments Submission of the revised RSPP to the Spatial Planning Committee, opportunity for amendments and/or recommendations Final Decision of the provincial government, adoption of the RSPP Public announcement of the RSPP

Procedure for setting up a Zoning Plan Step one: Step two: Step three:

Decision of the City Council/Municipality Council to set up/revise a zoning plan Everybody/any institution can publish his/her/its planning interests within four months Elaboration of the Local Development Plan; parallel participation of the public -3-

Step four: Step five: Step six: Step seven: Step eight: Step nine:

Adoption and announcement of the Local Development Plan Drafting the zoning plan Opportunity to comment on the draft within a period of eight weeks, the draft is accessible for everyone Taking into account all comments, revising the draft of the zoning plan, informing all actors Decision of the City Council concerning the final zoning plan, information, how comments have been considered Submission to the provincial government, it has to review and to examine the zoning plan, afterwards it will adopt/approve (then announcement is following) or refuse the zoning plan (then back to step 5)

The public participation process is valuable, because opinions from administrative units outside the competent authority and opinions from outside the administrative level (e.g. interest lobbies, NGOs, citizens) enrich the planning process. The involvement of the environmental authority is valuable to incorporate the environmental and ecological interests into the planning process.

The SEA Directive’s requirements regarding public participation The “Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment” (OJ, 2001) has to be transposed into the legislation of EU Member States before 21 July 2004 through laws, regulations and administrative provisions necessary to comply with it. Its main regulations concerning public participation are the following: •

Definition [Art. 2(d)]: The public shall mean one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisation or groups • Screening [Art. 3, par. 7]: Member States shall ensure that their conclusions pursuant to par. 5 [case by case and/or PP types], including the reasons for not requiring an EA ... are made available to the public • Consultations [Art. 6, par. 1]: The draft plan or programme and the environmental report ... shall be made available to the authorities referred to in par. 3 and the public [Art. 6, par. 2]: The public ... shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure [Art. 6, par. 4]: MS shall identify the public for the purposes of par. 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant NGOs, such as those promoting environmental protection and other organisations concerned [Art. 6, par. 5]: The detailed arrangements for the information and consultation of the authorities and the public shall be determined by the Member StatesTransboundary consultations [Art. 7, par. 2]: Deals with consultation between MS within the context of transboundary SEAsDecision making [Art. 8]: ... the opinions expressed shall be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.

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Information on the decision [Art. 9, par. 1]: Member States shall ensure that, when a plan or programme is adopted ... the public ... are informed at the following items are made available ...: The plan or programme as adopted; a statement summarising, how ... the opinions expressed ... have been taken into account ... and the reasons for choosing the plan or programme as adopted, in the light of other reasonable alternatives dealt with; the measures decided concerning monitoring

Austrian pilot SEAs To date, in Austria seven SEA case studies have been undertaken, all on a voluntary base, see the following table. Spatial planning SEAs

Sectoral SEAs

Development Area North-East Vienna (finished 2003), also transport and landscape issues Regional programme Tennengau, Salzburg (finished 2002) Land-use plan Weiz, Styria (finished 1999) Waste management plan of Salzburg province (finished 2004) Waste management plan of Vienna (finished 2001) Demonstration study Danube corridor (TEN), transport Local Energy Plan Graz Table 3: Austrian pilot SEAs

Please note, that the older pilot SEAs based on the proposal of the SEA Directive COM (96) 511 final. All pilot projects showed the feasibility of implementing the requirements of the SEA Directive into the Austrian legislation. It is to be expected, that the transposition of the SEA Directive will be done through amendments of existing acts. To date (i.e. May 2004) , the federal government has amended the Water Management Act and the provincial government of Salzburg has amended its Spatial Planning Act in order to fulfil the requirements of the SEA Directive. Further, the Province of Lower Austria proposed an amendment of its Spatial Planning Act and the Province of Carinthia proposed a new “Carinthian Environmental Planning Act” in order to transpose the regulations of the SEA Directive into its legislation.

Participation requirements and key questions There are some important requirements on public participation, in the context of this draft preliminary paper related to land-use plan SEAs. They are presented in the following list: • • • • • •

Public participation should support the transparency of decision-making It should safeguard sufficient access to relevant information concerning the land-use plan and the environmental report corresponded It should influence the decision-making by informing and involving the interested and affected public and relevant administrative bodies It should ensure that all relevant parties are involved, at least represented It should explicitly address their inputs, comments and concerns both in documentation and in decision-making It needs sufficient time and resources

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•

It needs “translation” of the land-use plan contents in order that everybody can understand its main issues, especially the environmental ones

The so called “Performance Criteria” for SEA, edited by the International Association for Impact Assessment (IAIA, 2002), contain three criteria regarding participation (amongst criteria for an integrated, sustainability-led, focused, accountable and iterative SEA process): “… a good-quality SEA process … is participative: • Informs and involves interested and affected public and government bodies throughout the decision making process • Explicitly addresses their inputs and concerns in documentation and decision making • Has clear, easily-understood information requirements and ensures sufficient access to all relevant information” The key questions for any participation process are: • •

•

Who? How to identify the public concerned? When? E.g. in the Netherlands there is a twofold involvement of the public, at the scoping stage and at the stage of reviewing the environmental report. The SEA Directive requests an early and effective opportunity within appropriate time frames for the public in order to comment on the draft plan and the environmental report. How? There are different methods and techniques to communicate the SEA issues to the public, especially information and consultation measures (both are covered by the SEA Directive), but also more active mutual measures

Sadler (Sadler 2001) elaborated a good overview on a range of methods for different levels of public involvement. He identified the following four groups: Level of public involvement Education and information provision Information feedback Involvement and consultation Extended involvement

Examples Leaflets, newsletters, newspapers, television, site visits Staffed exhibits, internet, public meetings, surveys Workshops, focus groups/forums, open house Community advisory/liaison groups, planning for real, citizen juries, consensus conference, visioning

Table 4: Methods of public involvement (selected from Sadler, 2001) Beside a brief description of all methods he is listing their advantages and disadvantages, too. A similar table can be found in a diploma thesis of the University of Technology Berlin (Hanusch, 2002) with the title “Strategic environmental assessment: Proposals for public participation”. The author identifies four levels of participation methods, too, and adds some remarks to their advantages and disadvantages, see the following table. Level of public involvement Public involvement through information Public involvement through participation Public involvement through co-operation Public involvement through mediation

Examples Print media, radio and TV, new media Working group, forum of citizens Workshop, round table, planning cell method Mediation

Table 5: Methods of public involvement (selected from Hanusch, 2002) -6-

In Austria, the opportunity for mediation (cf. last line of table 5) is regulated in Article 16 (2) of the EIA Act, i.e. for the project level, but any results only might be considered by the competent authority.

Selection of international legislation concerning public participation Public participation is an important issue within international legislation. Beside the requirements for the involvement of stakeholders and the public in the EU Directives on Environmental Impact Assessment (EIA, Directives 85/337/EEC and 97/11/EC) and strategic environmental assessment (SEA, Directive 2001/42/EC) here is to name: •

•

• •

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, the so called “Århus Convention” (United Nations Economic Commission for Europe [UNECE], ECE/CEP 43) from 25 April 1998, it came into force on 30 October 2001 Arising as a result of the Århus Convention we have the “Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC” (the latter one is the IPPC Directive) The “Espoo Convention” (Convention on Environmental Impact Assessment in a Transboundary Context), UNECE, from 25 February 1991, came into force on 10 September 1997 SEA Protocol to the Espoo Convention, UNECE, from 21 May 2003 (not effective, yet)

Actors of SEA Directive Public participation is one pillar of any SEA. The European SEA Directive knows the following actors: • • • •

The competent authority that prepares and/or adopts a plan or programme The environmental authority or authorities The public Other potentially affected Member States (including their authorities and public)

The environmental authority or authorities are to be consulted by reason of their specific environmental responsibilities. It/they has/have to be consulted when deciding on the scope and level of detail of the information which must be included in the environmental report. The public has to be identified through Member States. Public in the sense of the SEA Directive means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisation or groups. In any case the public affected has to be considered including relevant NGOs, such as those promoting environmental protection and other organisations concerned. Analogue regulations are valid for Member States significantly affected by the likely environmental effects of a plan or programme. The draft plan or programme and the environmental report have to be made available to the public and the environmental authorities (and the Member States affected). All opinions expressed (comments on draft plan and environmental report) have to be taken into account before the plan’s or programme’s adoption. Furthermore, there are some information rights for all parties after the decision, please refer to Article 9 of the SEA Directive.

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Lessons learned from land-use plan SEAs concerning public participation The next table summarizes some basic information for the three Austrian land-use plan pilot SEAs. Detailed information on Austrian pilot SEAs can be found in a forthcoming paper (Aschemann, 2004). SEA subject

Inhabitants Planning affected alternatives (incl. no action) 9,300 3 54,000 3

Land-use plan Weiz Regional programme Tennengau Development North-East 307,000 Vienna

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Comments “Pioneering” Austrian SEA 13 municipalities Transport, landscape and land-use issues, expensive approach with moderation and steering tasks

Table 6: Some characteristics of the three Austrian land-use SEAs Some lessons have been learned from the pilot SEA Weiz: • • •

Organize one common public hearing both for the drafted plan and the SEA (There was no comment regarding the environmental report. A reason could be, that two separate public hearings have been organised) The produced non-technical summary was not understood by everybody, as a consequence develop a really brief, clear and simple one in the future Good preparation, advertisement and moderation of public hearing is necessary

The requested non-technical summary of the environmental report according to Annex I of the SEA Directive seems to be a crucial document for the public involvement. In the case of the mentioned Weiz pilot SEA it was done through an article in the municipal newspaper, delivered monthly free of charge to every household. This article contained four pages: • • • •

One page described the basics of the SEA Directive including the environmental report One page showed the crucial areas (“key areas”) with intended changes of land-use patterns as a map One page summarized in a table a brief description of these key areas and remarks to both planning alternatives The last page gave information concerning the assessment method and invited all interested citizens to a public meeting, scheduled at 7 p.m. in order to get as many participants as possible

In the Tennengau trial run there was no single written comment regarding the environmental report, an article in the leading regional newspaper and a radio presentation could not change this disappointing result. At least, some inhabitants used the “planner’s surgery hours”, resulting in some oral comments. In the Viennese example a comprehensive “round table” model has been used with a big number of participating stakeholders (various departments of the provincial governments of Vienna and Lower Austria, external experts, qualified public (e.g. environmental NGOs, interest lobbies) and the general public. Four public meetings, a website, exhibitions, newspaper articles and more supported this SEA process. Together with commissioned moderation and steering tasks a considerable amount of money was spent for the SEA and its public participation. Consequently, a comparison of that SEA to future ones (without these advantage) has to be made very carefully. -8-

Concluding remarks This last section of the preliminary draft paper contains some ideas, recommendations and remarks for an effective public participation for land-use plan SEAs, derived from the Austrian experiences. It will be presented as a list. • • • • • • • • • • • •

There is no “cooking recipe”: But learn from own and foreign experiences and be creative. Commissioning pilot projects and reviewing completed SEAs with regard to public participation could help in this context. Techniques of participation depend on SEA’s subject: An overview of these techniques and methods is given in tables 4 and 5 of this paper. Sometimes there was less interest than expected and qualified public and organized groups were more present than “normal citizens”; this leads to the question, how one can reach the “silent mass” Consider the strategic level and try to “translate” the abstract land-use plan issues in a language that can be understood by everybody Currently there is no experience of transboundary effects in Austria related to the strategic level Site visits could be a good mean within public participation for land-use plans. This method was used in the case of the Weiz pilot SEA. The use of mediation could be tested for the strategic level Computer models could help visualizing environmental effects of land-use plans Allow sufficient time for consultation E-Mail could be used for commenting on the drafted plan and the environmental report, but be aware of the “digital divide”, especially for elderly people It is important to clearly define the competences: Who can do what and when? Communication between all actors concerned could be improved by a co-ordinator

Last, not least it has to be mentioned, that public participation is an additional and valuable resource to improve both the quality of land-use plans and decision-making.

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References Aschemann, R. (2000): Legislation of selected EU countries, Case Study Austria; in Finka, Petrikova (editors): Spatial Development and Planning in European Integration, Bratislava Aschemann, R. (2004): Lessons learned from Austrian SEAs, European Environment, forthcoming Hanusch, M. (2002): Die Strategische Umweltprüfung: Vorschläge zur Öffentlichkeitsbeteiligung – Ein europäischer Erkenntnistransfer (Strategic environmental assessment: Proposals for public participation), Diploma thesis, done at the University of Technology Berlin IAIA (2002): Strategic Environmental Assessment – Performance Criteria, Special Publications Series No. 1 of the International Association for Impact Assessment, Fargo, North Dakota (www.iaia.org) OJ (2001): Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. Official Journal of the European Communities from 21 July 2001, L 197/30-37, Brussels Sadler, B. (2001): Postscript Strategic Environmental Assessment: An Aide Memoire to Drafting a SEA Protocol to the Espoo Convention; in: Proceedings of International Workshop on Public Participation and Health Aspects in Strategic Environmental Assessment – Convened to support the development of the UN/ECE Protocol on Strategic Environmental Assessment to the Espoo Convention, edited by J. Dusik, The Regional Center for Central and Eastern Europe, Szentendre

Annex: Possible questions for the working groups The following questions, which are inter-related to some extent, could serve as a starting point for the discussions of the working groups: • • • • • •

Methods of gaining opinions/comments (paths of communication, role of media, ...) Who are the stakeholders and the public? Methods to communicate land-use plan issues in a way that everybody is able to understand these Resources (Time, money, staff, NGO expenditure ...) “Planning culture“ (authorities sometimes don‘t like involvement of “non-experts“) Considering environmental and social/economic effects? This leads to one of the current main discussions of the SEA community (environmental versus sustainability assessment).

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