On 22 March 2022, the Government decided to introduce a bill on changes to shore protection and differentiated shore protection. It was proposed that the bill enter into force on 1 July 2022, but it has now been halted in the Riksdag.
Over the years, several attempts have been made to differentiate shore protection in order to even out the difference between untouched shore areas and shore areas that have been developed to a considerable extent. However, the results of the latest attempt, in 2009, were not in line with the expected outcome. Instead, shore protection has been weakened in densely populated areas and strengthened in sparsely populated/rural areas.
After extensive discussion, the Government decided to introduce a bill on differentiation of shore protection. The implementation of the bill has now been halted by the opposition (Moderaterna, Sverigedemokraterna, Kristdemokraterna and Vänsterpartiet), who are calling for it to be rejected. However, the contents of the Government’s bill are still of interest for the future since they aim to further differentiate the protection – something that the legislator has previously attempted to bring about and which is also likely to be relevant in the future.
SHORE PROTECTION AT PRESENT
Shore protection is general area protection that applies beside seas, lakes and watercourses throughout Sweden. The aim is to secure public access to shore areas and preserve satisfactory living conditions for animal and plant life on land and in water.
Shore protection involves a prohibition on construction of new buildings or actions that significantly affect public access to shore areas or plant and animal life on land and in water. As a general rule, a shore protection area consists of an area of land and water extending up to 100 metres from both sides of the waterline at normal average water levels. The county administrative board may extend this to a maximum of 300 metres to secure the aims of shore protection.
AIM OF THE BILL
The bill was aimed at increasing the differentiation of shore protection in order to impact on the specific protection needs of different areas. The strength of the shore protection would vary according to existing development pressures and access to areas close to the shore.
The aim of the bill was to facilitate housing and business activities close to the shore in areas with low settlement pressure and thus help achieve a more vigorous landscape. In addition, the differentiation would serve to increase the legitimacy of provisions on shore protection through more suitable shore protection.
CRITICISM BY THE COUNCIL ON LEGISLATION
When producing the bill, the Government sent a draft of the bill to the Council on Legislation for examination in November 2021. That draft bill was severely criticised. The Council on Legislation called attention to the fact that there was insufficient detail regarding the impact of the bill on plant and animal life and the possibilities of achieving the environmental quality goals set by the Riksdag. Instead, according to the Council on Legislation, the Government “expressed an opinion on the matter”. This, in combination with other deficiencies in the preparatory documents, made the matter “problematic overall” according to the Council on Legislation.
The Council on Legislation also criticised the use of the term “fri passage” [free passage] regarding the securing of access to the shoreline for the general public because, according to the Council on Legislation, its meaning is unclear and it therefore risks creating conflicts between landowners and individuals. Further problems concerned the Government’s proposal that the text of the law clearly state that an extremely restrictive approach should be adopted with regard to exemptions from or abolition of shore protection in certain sensitive areas. According to the Council on Legislation, this constituted a policy rule on how a rule should be interpreted in a particular situation which was aimed at those applying the law and no changes had been made to the rule in question.
As we will see below, the Council on Legislation’s criticisms had at least some impact on the Government’s bill and it was subsequently introduced in March 2022.
CONTENTS OF THE BILL
Development areas close to the shore
“Rural development areas located close to the shore”, where there is an easing of protection, would be replaced by “development areas close to the shore”. Development areas close to the shore were defined as areas that have good access to undeveloped protected shore areas, low settlement pressure and which are of no particular importance for any of the aims of shore protection. Those areas were considered to be located mainly in rural areas.
It was proposed that shore protection in development areas close to the shore be eased by taking more reasons into consideration in the case of abolition of and exemptions from shore protection. As far as abolition and exemptions were concerned, cases to be taken into consideration included one- and two-dwelling buildings, ancillary buildings to those buildings and buildings or small-scale businesses benefiting from a location close to the shore.
Local influence increased since municipalities were granted the ability to designate development areas close to the shore in a comprehensive plan in accordance with the Planning and Building Act. The comprehensive plan would be taken into account when assessing whether a particular location was located within a development area close to the shore.
Smaller lakes and narrow watercourses
In areas beside lakes with an area of less than one hectare or watercourses narrower than two metres, it was proposed that the shore protection area be reduced from 100 to 25 metres from both sides of the waterline, referred to as “limited shore protection”. It would also be easier to abolish the remaining (limited) shore protection, provided that the county administrative board had not widened the shore protection area, that a zone was left for free passage for the general public and that the area was of little importance in meeting the aims of the shore protection.
Restored or developed lakes and watercourses
The Government was given the opportunity to issue regulations whereby shore protection would not apply beside lakes or watercourses that had been developed or restored in order to (1) reduce the nutrient load in the local aquatic environment, (2) implement a climate adaptation measure or (3) improve conditions for animal and plant life.
Strengthening of shore protection
It was proposed that shore protection be strengthened in areas of particular importance for animal and plant life where the settlement pressure is high or where demand for land to build holiday homes is extremely high. Abolition or exemption may not mean any deterioration in long-term access to or conditions for conserving valuable shore and water areas.
Comments
The opposition halted the implementation of the bill by each party submitting a motion proposing that the Government’s bill be rejected. Reading these motions gives one an idea of the extremes of opinion in the disagreement that has existed for many years concerning the extent of shore protection. Although the Government’s bill is a compromise between parties with differing views, the bill was not accepted by a majority in the Riksdag.
Most of the opposition parties want shore protection to be fundamentally redesigned. Those parties want to see significantly greater local influence and some of them even want to abolish general shore protection in the country (Moderaterna and Sverigedemokraterna). Abolition would mean that municipalities would instead be responsible for assessing which areas they find it necessary to introduce shore protection in. Vänsterpartiet, on the other hand, wants to see a general tightening of shore protection nationally. According to them, the bill would mean excessive easing of shore protection.
It may be said that the Swedish municipalities already have a broad influence over matters concerning shore protection through their ability to grant exemptions. According to the preparatory materials and case law, an extremely restrictive approach must be adopted towards such exemptions. However, statistics from the Swedish Environmental Protection Agency show that over 5,500 shore protection exemptions were granted in 2020. According to a report from the Swedish Society for Nature Conservation, the number of exemptions granted has doubled since 1990 and a review of studies by the Swedish University of Agricultural Sciences and Lund University shows that exemptions were granted in 93% of the 683 cases reviewed.
In practice, therefore, a relaxation of shore protection seems to have largely taken place already and there is already extensive local influence over these matters. At the same time, there are considerable discrepancies in the approach to the issue adopted by different municipalities. In 2020, for example, over 900 municipal exemptions were granted in the County of Stockholm, compared to around ten in Gotland.
The issue of shore protection stems largely from a balancing of interests between nature protection and the right of public access on the one hand, and exploitation and development of rural areas on the other. No matter which interest is ultimately allowed to weigh heavier, it seems relatively uncontroversial to state that current shore protection needs to be revised. In any such revision, as the Council on Legislation has pointed out, it is extremely important for any conflicts with species protection issues and set environmental quality goals to be carefully analysed and considered.
The debate on changes to shore protection has been going on for many years and we have been waiting for changes like those proposed in the Government’s bill. Now everything indicates that the bill will not become a reality – at least not in its current form. We will therefore also continue to monitor the work by the Government and the Riksdag to change shore protection in the future.
We have extensive experience of dealing with matters relating to shore protection for our clients. Please contact one of us if you need advice or have any concerns regarding shore protection.
