The report entitled “En enklare hantering av vattenfrågor vid planläggning och byggande” [Simpler management of water issues in planning and construction] put forward proposals for changes to the rules in November 2023. The report has now been circulated for review and responses were received from the consultation bodies during the summer. In general, the consultation bodies take a favourable view of the establishment of the inquiry, but opinions differ on the proposals for changes to the rules put forward in the report. One part of the draft law that has been questioned by many of the consultation bodies is whether it is appropriate for the municipalities to be granted the power to order property owners to implement surface water measures. It remains to be seen how the legislative work will progress and what views will be taken into consideration. To sum up, we can state that the proposals in the report are a watershed.
The Government 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 report contains a review of (i) how the impact of environmental quality standards for surface water and groundwater can be guaranteed in planning, ii) how sustainable surface water management can be guaranteed in detailed development planning and construction and (iii) how the drinking water supply can be safeguarded in planning. Most of the proposed legislative changes affect the Environmental Code, the Planning and Building Act (PBL) and the Public Water Services Act (LAV). Lindahl has previously published an article describing the report in more detail. That article can be read here.
Since the previous article, the report has been circulated for review and the consultation bodies’ comments on the report were received during the summer. Most of the consultation bodies take a favourable view of the establishment of the inquiry and the fact that the regulations are being reviewed. However, there is considerable disagreement over the legislative proposals that have been put forward. Some consultation bodies are of the opinion that the existing regulations already allow for the proposals presented in the report and what is lacking is the implementation, whereas other bodies consider that the regulations are deficient and legislative changes are needed. Opinion is also divided as to whether, among other things, it is appropriate to define the term “dagvatten” [surface water] in the PBL and the LAV, and whether it is appropriate for the municipalities to be granted the power to impose requirements on property owners through orders. It has also been stated that several of the proposals need to be studied in more detail and that an impact assessment must be produced within the framework of this ongoing inquiry.
New definition of “surface water” in the PBL and the LAV
Opinion is divided as to whether it is appropriate to include a definition of the term “surface water” in the PBL and the LAV, in just one of the laws or not at all. For example, Havs- och vattenmyndigheten [the Swedish Agency for Marine and Water Management] opposes a definition of “surface water” in the LAV, whereas Boverket [the National Board of Housing, Building and Planning], for its part, rejects the proposal to include the definition in the PBL but has no objection to “surface water” being defined in the LAV. Other opinions put forward by a number of the consultation bodies include a suggestion that the insertion of a definition of “surface water” should wait for the EU’s upcoming Wastewater Directive, since that Directive is expected to entail a review of the term “avloppsvatten” [wastewater] that may also affect the term “surface water”.
Sveriges Advokatsamfund [the Swedish Bar Association] is one of the consultation bodies to express the opinion that it is more appropriate to wait for the EU’s Wastewater Directive before inserting a definition of “surface water” in the LAV. With regard to the definition in the PBL, the Association rejects the proposal for several reasons, including the fact that the advantages of defining the term in the PBL are not clear from the proposal. Naturvårdsverket [the Swedish Environmental Protection Agency] opposes the inclusion of a definition of “surface water” and argues, among other things, that a change in the legal definitions in the PBL risks contributing to a situation whereby the term “avlopp” [waste] in that law becomes difficult to interpret and that no review of the term “waste” was included in the inquiry due to the upcoming revision as a result of the Wastewater Directive. Svenskt Vatten [the Swedish Water and Wastewater Association] also considers that the Wastewater Directive may lead to a review of the term “wastewater” in all relevant laws and that the review should wait for the implementation of the Directive, but has no objection to a subsequent inclusion of a legal definition in both the LAV and the PBL.
In its comments, the County Administrative Board of Jämtland stated that the authority takes a particularly favourable view of the fact that various terms are defined more clearly and are integrated into the PBL and the LAV, among other things. The County Administrative Board of Norrbotten also supports the inclusion of a legal definition of “surface water” and states that the proposal clarifies and makes water issues visible from an overall perspective. Opinion is therefore divided as to whether “surface water” should be defined in both the PBL and the LAV or not at all.
The power to order property owners to adopt or maintain surface water measures
Another controversial proposal is the new provision contained in section 22a(1) LAV, whereby municipalities will have the power to order a property owner to adopt or maintain surface water measures/surface water installations. The Swedish Water and Wastewater Association is one of the consultation bodies that supports the proposal for a new right to issue orders linked to requirements in detailed development or water service plans and proposes that an addendum be made to section 6b LAV stating that water service plans must contain an assessment by the municipality of the surface water measures that need to be implemented in order to make the power to issue orders to property owners more effective.
Fastighetsägarna [the Swedish Property Federation] rejects the proposal and states that the aim of such a provision is to regulate property owners’ responsibility for surface water management in the built-up environment and that it is not included in the aims of the LAV. The Swedish Property Federation also considers that the report provides no justification of why property owners must cover for defects in the water supply and drainage principal’s service and that the proposal may give rise to an even more confused situation with regard to responsibility. The National Board of Housing, Building and Planning considers that the proposal, in its current form, means that municipalities will have the power to force through the implementation of provisions in a detailed development plan in a way that has no equivalent in the PBL. Furthermore, the National Board of Housing, Building and Planning argues that the proposal is inappropriate because supervision based on a detailed development plan should be governed in the PBL and also because the power to issue orders pursuant to the LAV will be more extensive than the power granted under the PBL.
The idea that the proposed power to issue orders may not be appropriate to the LAV and could be more suited to the PBL is touched on by the Swedish Bar Association in its comments. The Association considers that the exercise of public authority appears to be an alien element in the LAV and that consideration should be given to whether the proposal belongs in the PBL rather than in the LAV. This is because such an order is aimed at ensuring compliance with a detailed development plan or area regulations and should rather be linked to the PBL.
Concluding comments
To sum up, the opinions of the consultation bodies differ and the report, with its associated draft law, is a watershed to say the least. It remains to be seen how far the Government will take the views into consideration and how further legislative work will proceed. Even if the report in its current format were not adopted, most of the issues have been presented in a new light and new perspectives have been highlighted.
The EU’s upcoming Wastewater Directive is expected to entail a review of the term “wastewater” and the Government has recently presented a Committee Directive entitled “Ett samhälle anpassat till klimatförändringarna” [A Society Adapted to Climate Change] (Dir. 2024:31), which means that an investigator must analyse and, if necessary, propose new or adapted legislation to enable effective climate adaptation measures to be implemented.
Lindahl is monitoring future developments and upcoming draft laws with great interest and takes a positive view of developments towards a sustainable society and regulations that work both today and in future. You are welcome to contact us if you have any questions.
