The report entitled “En enklare hantering av vattenfrågor vid planläggning och byggande” [Simpler management of water issues in planning and construction] (SOU 2023:72) was presented in November 2023. The inquiry has been going on since October 2021 and has been assigned the task of carrying out a review of the rules contained in the Planning and Building Act for dealing with water issues. In order to simplify and clarify the regulation, the inquiry proposes amendments to the Planning and Building Act, the Public Water Services Act and the Environmental Code. If the proposed rule changes become a reality, they will have a major impact on planning and construction. The stakeholders primarily affected are municipalities, developers and property owners. In this article, we describe the main contents of the report, the legislative proposals and the remaining challenges.
As changes in the climate have occurred, Sweden has been affected by both water shortages and flooding and the question of how to deal with those problems has become a highly topical issue in planning and also when it comes to managing existing buildings. Difficulties have also arisen in relation to water quality and the requirements that can be established in planning and construction to ensure compliance with the rules on environmental quality standards (“EQSs”) for water. It has been noted that there are limited possibilities for dealing with the issues and preventing the problems within the framework of existing regulations and it is also by no means clear how the responsibility is divided among the various stakeholders in urban planning and construction.
Therefore, in October 2021, the Government appointed the inquiry on Water Issues in Planning and Construction (Committee Directive 2021:92). In accordance with the Committee Directive, the inquiry has been assigned the task of carrying out a review of the rules of the Planning and Building Act (plan- och bygglagen – PBL) regarding water.
THE PURPOSE OF THE INQUIRY AND THE CHALLENGES IDENTIFIED
The purpose of the inquiry was to simplify and clarify the regulations on EQSs for water in planning and assessment in accordance with the PBL and to ensure that the regulations correspond to the requirements under EU law. The inquiry has also been assigned the task of investigating what tools the municipalities need in order to secure requirements for environmentally and economically sustainable solutions for surface water and drinking water in planning and assessment under the PBL.
The inquiry’s task has been divided into the following three parts: i) guaranteeing the impact on planning of EQSs for surface water and groundwater; ii) guaranteeing sustainable surface water management in detailed development planning and construction; and (iii) safeguarding the supply of drinking water in planning.
The inquiry’s conclusion is that EQS regulation in relation to the PBL is unclear and difficult to apply. That is because neither the PBL nor its preparatory materials clearly state the situations in which a planning decision or other decision under the PBL is not considered to comply with an EQS. Nor is there any regulation on what investigations the municipality needs to carry out in order to show that a plan or other decision does not result in non-compliance with an EQS.
The inquiry notes that surface water management faces many challenges. The inquiry points out, for example, that there is no legal definition of “dagvatten” (surface water) and that, based on current law, the meaning of surface water is unclear. Other challenges identified include the fact that the situation regarding responsibility for drainage of surface water and the regulation of surface water management in the case of building permits, advance notices and start-up instructions is unclear. It is also difficult to establish requirements for surface water management in existing buildings. With regard to the supply of drinking water, the inquiry notes that the municipalities have a limited ability to impose requirements on private water supplies and water conservation. The same applies to the municipalities’ ability to establish requirements for protective measures when planning near groundwater bodies worthy of protection.
PROPOSED CHANGES
In view of the challenges identified, the inquiry has proposed amendments to the PBL and the Public Water Services Act (Lagen om allmänna vattentjänster – LAV) in particular. Amendments have also been proposed to the Environmental Code (Miljöbalken – MB) which primarily relate to clarification of the provisions on environmental quality in Chapter 5 MB, as well as the introduction of new provisions on taking environmental quality into consideration in planning.
The Planning and Building Act
The inquiry proposes that a legal definition of surface water be introduced in both the PBL and the LAV. According to the proposed definition, surface water means “rainwater or meltwater that does not penetrate the ground or that runs off on the surface of the ground or structure”. It is also proposed that surface water should be designated as a separate public interest in Chapter 2, section 6 PBL, which must to be taken into consideration with regard to the location and design of construction works. The amendment in Chapter 2, section 6 PBL means that, in the case of planning and matters concerning building permits, etc., requirements must be established whereby structures and buildings must be designed and positioned in a suitable way with regard to the ability to manage surface water.
The inquiry proposes that the scope of Chapter 2, section 10 PBL, the current wording of which states that planning and other matters in accordance with the PBL must comply with the EQSs in accordance with Chapter 5 MB, must be limited and must only include planning. The inquiry also considers it sufficient for regional and comprehensive plans to clearly show how the provisions on environmental quality in Chapter 5 MB have been taken into consideration rather than showing the way in which they have been fulfilled. In order to link the physical planning under the PBL with the planning of water service plans under the LAV, the inquiry proposes that regional plans should clearly state how the plan has been coordinated with the municipal water services plans. The inquiry also proposes that the municipality be given new abilities to decide on protective measures and other measures linked to water in a detailed development plan, such as protective measures to mitigate or prevent water shortages.
The Public Water Services Act
According to the inquiry, it needs to be clarified in the LAV that surface water constitutes a separate water service. Furthermore, the municipality must be entitled, in certain cases, to order a property owner within an area of activity to adopt or maintain surface water measures on the plot if such is required in order to improve the functioning or security of the public water and drainage system. That order may be associated with penalties. If the property owner is ordered to adopt measures that go beyond the property owner’s ordinary responsibility for surface water management on the property and thereby suffers damage, the property owner will be entitled to compensation. According to the proposal, the ability to order a property owner to adopt measures or carry out maintenance must apply in relation to plans that have been adopted from 1 January 2027.
The inquiry also proposes greater powers for the county administrative board or municipality to issue regulations prohibiting or restricting the use of drinking water in the event of water shortages or risk of water shortages. In addition, the water and drainage principal must be given the right to close off the water supply to a property in the event of non-compliance with an obligation under the regulations on prohibition or restriction of use of drinking water.
The inquiry also proposes the introduction of requirements for applications or decisions on water protection areas for public sources of drinking water supply that provide an average of more than 10m3 of water per 24-hour period or supply more than 50 people. The provision means that the municipality or water and drainage principal must apply for, or adopt, a water protection area in accordance with Chapter 7 MB for such sources of water supply.
REMAINING CHALLENGES
Several of the regulatory changes proposed by the inquiry can be expected to lead to simpler processes with more tools and better tools for municipalities to deal with water issues when planning for new building. The division of responsibilities between the municipality and individual property owners is also expected to become clearer. However, many challenges remain and these need to be further investigated and dealt with.
One remaining major challenge of great importance is how surface water should be managed in existing buildings. The impact of existing buildings on the water environment usually occurs through excessive run-off or pollutants/eutrophicating substances from surface water. Within the framework of its supervision under the Environmental Code, the municipality has the ability to address some of these problems by, for example, establishing requirements for appropriate water treatment technologies.
However, the municipality’s ability to deal with challenges of that kind pursuant to the PBL within the framework of an existing detailed development plan is limited. The starting point in accordance with the PBL is that a municipality may not change a detailed development plan during its implementation period without the consent of the property owners concerned. However, the municipality has the option of amending an adopted detailed development plan if new circumstances of significant public importance arise that could not have been foreseen when the plan was adopted (see Chapter 4, section 39 PBL). However, the process is time-consuming and costly, in view of the fact, among other things, that a property owner is entitled to compensation if the detailed development plan is amended or revoked. Existing building rights or advance notices are also not affected by such a change. The challenge of managing surface water in existing buildings is therefore expected to remain and is something that, according to the inquiry, needs to be investigated further.
CONCLUDING COMMENTS
To sum up, the inquiry proposes several new provisions aimed at dealing with the problem of surface water, guaranteeing the drinking water supply and clarifying the regulation of EQSs in planning. If the proposed changes result in the adoption of legislation, municipalities will be provided with more tools and better tools for dealing with some of the problems existing today. The changes will have the greatest impact in relation to new buildings and plans adopted a number of years into the future. The matter of how the problem will be dealt with in existing buildings still remains and it remains and we have yet to see whether a new inquiry will be appointed to investigate the problem in more detail.
Lindahl is monitoring developments with great interest and adopts a positive view of the development towards a sustainable society and regulations that work both today and in future. You are welcome to contact us if you have any questions.
