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Climate as a Public Interest in
Planning and Zoning . |
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Burdens
on the environment typically go hand in hand with the demands
placed on areas of land by correspondingly intense land uses.
It therefore makes sense to use the means of regional and
urban development to pursue a precautious planning towards the
aim of environmental protection. Accordingly, the current
German environmental law deals with spatial planning in
addition to its original focus on the commercial realm. Zoning
and planning at the municipal level thus serves as an
important instrument that contributes significantly to climate
protection and the preservation of air quality: A site plan
that has been developed in accordance with the land use plan
of a municipality has binding authority to determine whether
land areas are used in a manner that the environment can
tolerate. Various legal demands also take this issue into
account. According
to § 1 (5) of the German Building Code (BAUGESETZBUCH (BauGB),
urban
development planning has to be sustainable, integrate social,
economic and ecologic demands and assume the responsibility
for future generations. Urban development plans have to
contribute to an environment fit for human beings, to the
protection and development of natural resources, also in
regard to climate protection, as well as preserve and develop
the urban pattern and the appearance of the landscape and of
the town or city. According to § 1 (6) of the German Building Code, especially the following aspects have to be taken into account when establishing urban development plans: No.
7 environment protection aspects, including the conservation
of nature and landscape management, especially a)
the consequences on animals, plants, soil, air, climate and
the interactions between them, as d)
environmental effects on human beings and their health as well
as on the population as a whole, e)
the avoidance of emissions..., f)
the use of renewable energies as well as the economical and
efficient use of energy, g)
the presentation of landscape plans and green open space
structure plans as well as of other h)
the conservation of the best possible air quality in areas
where the fixed immission protection limit and i)
the interactions between the different aspects of
environmental protection. The
requirements of the Federal Immission Control Act (Bundes-Immissionsschutzgesetz,
BImSchG) concerning air pollution control strategies in
particular areas (see §§ 49, 50 of the Federal Immission
Control Act) are applied for the weighing of interests in
development planning especially with issue h). Supplementary
regulations in § 1a of the German Building Code concretise
these ecological aspects which have to be weighed and which
can also have a positive influence on our climate: In
a soil protection clause the possibilities of the reclamation
of land, infill development and other measures of development
of core areas are mentioned exemplarly. The sealing of soil
surface has to be restricted as much as possible (§ 1a (2)). According
to § 1a (3) of the German Building Code, the compensation of
intrusions upon the natural environment also belongs to the
aspects of environmental protection which have to be taken
into account. The compensation is done by suitable
descriptions according to § 5 of the German Building Code in
the structure plan or by regulations in the zoning map
according to § 9. We
want to point out that one of the aims of nature and landscape
protection is to make sure that our natural assets (soil,
water, climate, fauna and flora) can regenerate and can be
used sustainably in future (see § 1 (1) no. 2 of the Federal
Nature Conservation Act (Naturschutzgesetz, NatSchG)). According
to the European Law Adaption Act for the construction sector (conversion
of EU guideline 2001/42/EC into national law), it had been
necessary in 2004 to amend the German Building Code. This was
an occasion to revise the German Building Code completely. §
2 (4) of the German Building Code requires an environmental
impact assessment for development planning in which
significant expected effects on the environment are determined,
described and evaluated. § 2a requires, besides the
argumentation for a development plan draft, a separate
environmental report as part of the argumentation. This means
that a separate regulation on environmental impact assessments
for particular urban development plans, like in § 1a (2) no.
3, is no longer necessary. According
to this, § 17 of the Environmental Impact Assessment Law (Umweltverträglichkeitsprüfungsgesetz,
UVPG) makes clear that land-use plans in the meaning of § 2
(3) no. 3 and especially plans according to no. 18.1 to 18.9
of Appendix 1 have to be carried out in compliance with the
regulations of the German Building Code. The
guidelines of the previous § 1 (5) sentence 2 no.7 together
with the regulations of the previous §§ 1a and 2a as well as
with the regulations of annex I of the SEA Directive and of
annex IV of the EIA Directive are combined in § 1 (6) no. 7 (see
above). Compared to the environmental assessement up to now
according to the EIA Directive, it is new that the
investigation is not restricted to negative environmental
impacts. The
revision of the existing German Building Code from 1 January
1977 made comparable demands for precautious environmental
protection in zoning and planning and also took into account
the precautionary principle embodied in the 1974 Federal
Immission Control Act. § 50 of the Federal Immission Control
Act formulates a principle that binds every planning-related
entity: "The areas foreseen in spatial plans and measures
for a defined use are to be arranged in a way that
environmentally-damaging effects are avoided as far as
possible on exclusively or predominantly residential areas as
well as other areas requiring protection." According
to § 4 (1) of the German Building Code, the municipality has
to solicit as early as possible the input of the authorities
and other public agencies whose areas of responsibility are
affected. The public agencies have to be informed and asked
for a statement, also concerning the necessary extent and
degree of specification of the environmental impact assessment. For
the handling of the planning factors air and climate, however,
no particular authority or office is specifically responsible
as public agency. The traditional bases for climate protection
and preservation of air quality lie (according to their
emphases) in the areas of:
Various
participants in planning processes can thus represent this
interest in the public-input process, especially because air
and climate are omnipresent and therefore overlap with other
concerns. The
municipalities' role is to monitor the significant
environmental impacts expected as a result of the realisation
of the urban development plans. This enables them to determine
unexpected negative impacts at an early stage and take the
appropriate measures. For this, the municipalities use the
monitoring measures that have to be indicated in the
environmental report as well as the information given by the
authorities according to § 4 of the German Building Code. The
law on the easier implementation of plans for the inner
development of towns and cities from 21 December 2006 amended
the German Building Code as from 1 January 2007 to the effect
that land-use plans for the reclamation of land, for infill
development and for other measures for the inner development
of cities can be established, under certain conditions, in an
accelerated procedure and without an environmental impact
assessment (this is called a land-use plan for inner
development). The maximum size of the area for this procedure
is 70,000 m² and a rough examination has to come to the
estimation that the land-use plan is not expected to have
significant environmental impacts which would have to be
considered according to § 2 (4) sentence 4 of the German
Building Code (preliminary examination of an individual case).
The authorities and other public agencies whose
responsibilities can be affected by the planning are to be
involved in the preliminary examination of the individual case. The
German Building Code and the Land Use Ordinance (Baunutzungsverordnung,
BauNVO) offer differentiated possibilities for urban
development that is climatically just. The legal catalogue of
permissible instruments in zoning and planning has been
expanded (§ 9 (1), (1a) of the German Building Code). There
is, however, no instrument that can bring about on its own a
healthy urban climate. The
new legal instruments embodied in the "urban planning
contract" (§ 11 of the German Building Code) and the
"project completion plan" (§ 12 of the German
Building Code) accommodate the consideration of urban climate
interests in several regards: The representation of the concrete project in the project completion plan allows for the examination and assessment of all climatic effects on the surrounding area resulting from the forms of built structures. This has relevance for the aspects of sunlight, lighting, possibilities for solar use and bioclimatic conditions. The
instrument of the urban planning contract can tie together an
energy provision concept (e.g. solar-thermal energy) with its
technical details. Urban
development contracts can also be used as goal-setting
contracts for the implementation of climate-protecting
measures along the lines of the Federal "Agenda 21"
program. In
light of worldwide efforts towards the protection of the
earth’s atmosphere, one can conclude, based on altered
appraisals in favour of environmental protection –
especially in favour of air and climate – that the value of
these factors is no longer limited to aspects of the local
climatology and the climate of the local terrain. Large-scale climate protection is to be taken into consideration in zoning and planning as a public interest. This issue is now also dealt with in the German constitution, which defines environmental protection in Article 20 a as a state goal. Undefined legal terms (for example "in the interest of the general public") must now be interpreted in light of this state goal. |
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| German Federal Building Law |
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| Federal Emission Protection Law |
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| Building Use Regulation |
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