Climate change is happening and Sweden is facing continued changes with major effects on society which will impact on the natural environment, infrastructure and human health, among other things. Matters relating to climate adaptation have become increasingly topical in recent years.
Climate change and the need for climate adaptation raise a number of legal questions. These include the municipalities’ responsibility in the case of comprehensive and local development plans, property owners’ and construction contractors’ responsibility in new construction, redevelopment and management of properties, municipalities’ responsibility for stormwater management, protection of existing areas through installation of flood protection, etc., access to drinking water and competition for water resources.
Previous investigations and legislative work
Because the allocation of responsibility among various operators with responsibility for climate adaptation is unclear, in 2015 the Government commissioned an enquiry on climate adaptation that resulted in SOU 2017:42 “Vem har ansvaret” [Who is responsible]. The main task of the enquiry was to clarify the allocation of responsibility for all land and all climate effects among the State, municipalities, county councils and other bodies. The researchers would also analyse any obstacles and limitations in the legislation for the implementation of climate adaptation measures. One specific question was to review existing legislation and propose the changes required to bring about long-term sustainable stormwater management.
The enquiry resulted in a national strategy for climate adaptation (Government Bill 2017/18:163 and Riksdag Communication 2015/16:87). In order to clarify the municipalities’ responsibility for climate adaptation, two legislative amendments were introduced in the Swedish Planning and Building Act (2010:900) (“PBL”).
The new provisions of the PBL include:
- A requirement for municipalities to put forward their views in the comprehensive plan on the risk of damage to the built-up environment as a result of climate-related flooding, landslip, landslides and erosion and how such risks can be reduced or eliminated (Chapter 3, section 5 PBL).
- In a local development plan, the municipality may decide that a land permit is required for land measures that could be detrimental to the permeability of the land unless such measures are adopted in order to build a street, road or railway that is compatible with the local development plan (Chapter 9, section 12 PBL).
First report from the National Expert Council for Climate Adaptation
As part of the national strategy for climate adaptation, the Government also appointed the National Expert Council for Climate Adaptation (the “Expert Council”) in 2018. The Expert Council consists of members in a number of areas such as land-based industries, industry, physical planning, climatology, etc. The Expert Council is linked to SMHI [the Swedish Meteorological and Hydrological Institute], where the Expert Council secretariat is located.
The Expert Council presented its first report on 9 February 2022.
The report is an extensive read at 684 pages. We have therefore focused on looking at some of the proposals that may mean changes to existing legislation in future. The following proposals are the ones that, in our view, could have an impact on municipalities, public authorities, property owners, agricultural and forestry operations, construction operators and operators in water activities and environmentally hazardous activities and others.
The measures proposed by the Expert Council in the report include:
- Clarification in the PBL so that the provision on the contents of comprehensive plans indicates that all climate-related risks that are appropriate for consideration in a comprehensive plan must be included.
- Set up an enquiry to clarify how the application of the provisions of the PBL on climate adaptation measures can be strengthened and how particularly favourable adaptation measures can be promoted.
- Set up an enquiry to review legislation and regulations governing climate adaptation in order to lay a basis for facilitating the implementation of adaptation measures in different sectors.
- Production of a Swedish water budget, where extraction of raw water must be reported, water extraction fees are charged for certain uses and an order of priorities in the event of water shortages is established.
- A need for greater flexibility regarding permits for water extraction and relating to how climate change should be described in permit applications.
- A review of the possibility of introducing an environmental quality standard for quantitative surface water status.
- As a starting point for permit assessments in designated particularly sensitive areas, water extraction must not adversely affect ecosystems.
- A review of the possibility of establishing requirements stating that environmentally hazardous activities must be adapted and protected in view of climate change.
- A cross-departmental unit for preparation of water issues should be set up at departmental level.
- Plans for a long-term secure water supply should be drawn up at municipal level, taking climate change and social development into consideration.
- Maritime spatial planning should provide guidance for local development plans at municipal level.
- Resources for water management and marine environment action programmes should be increased.
- A tightening of rules on what is permitted in maritime protection areas, taking climate change into consideration.
- Facilitate the establishment of nature conservation or refuges for climate adaptation.
- Enable back-up capacity in the event of drought, including in agriculture. Increase flexibility with regard to permits for water extraction or apply more flexible conditions where the quantities extracted can vary with regional access.
- Introduce extended and shared (with the municipality) liability for damages for construction contractors.
- Extension of the limitation period for liability for damages to 25 years (linked to liability for damages due to failure to carry out climate adaptation).
- Requirements for climate adaptation certification of properties and buildings in areas at risk of flooding or vulnerable to landslip and landslides.
- A “climate adaptation declaration” at the moment of sale of properties.
Comments
One of the proposals that we consider could have a major impact on liability issues if implemented is an extension of the limitation period for damages resulting from buildings not being climate adapted when flood damage, for example, has occurred. Today’s limitation period is generally 10 years and any change to this system requires careful consideration. The current allocation of liability means that the municipality is normally the party against which injured property owners file claims as a result of liability for errors or omissions in planning in accordance with Chapter 3, section 2 of the Damages Act. Nevertheless, the liability for damage due to unsuitable planning only applies for 10 years after the local development plan in question gained legal force. According to the Expert Council, many municipalities find that construction contractors do not make the necessary investments in climate adaptation measures. According to the Expert Council, an extended, shared liability is one way to strengthen incentives for developers to adapt properties to the climate in new construction.
"Lack of water has become a real problem in the south and south-east of Sweden in recent years."
Lack of water has become a real problem in the south and south-east of Sweden in recent years. In order to deal with this and the existing competition for water resources, a proposal is put forward for a water budget and for permits for water extraction to be more flexible, allowing the extraction to vary based on the resource and for them to be opened up for reviews. Such a procedure is not possible with the current permit provisions contained in Chapter 11 of the Swedish Environmental Code and the strong legal force that a permit has. Modernising water extraction permits would therefore require extensive legislative work. However, in the same way that legislation on modern environmental conditions for hydropower was introduced, there is also a good chance of reviewing the conditions for assessing water extraction permits in order to obtain permits with conditions that are adapted to the current situation.
Do you want to know more about legislation on climate adaptation or did the article raise other questions? You are very welcome to contact any of us or your regular contact at Lindahl.
