Planning, Use of Areas and Environment

The Planning Act authorises public authorities to lay down detailed rules for a specific area in Denmark, e.g. through national planning directives as well as municipal and local plans. Such areas include:

• Urban and rural zones
• Summer cottage areas
• Areas for industrial, residential and public use
• Areas for retail shops, area development, etc.

In addition, the Planning Act authorises public authorities to issue compulsory purchase orders, and it also contains rules on any municipal obligation to take over a particular property if the property has been designated for public use.

It is also important to understand the very extensive provisions of the Planning Act on publication and consultation on proposals. If the rules are not complied with, the decision of the public authorities may ultimately be unlawful. Depending on the circumstances of each case, this may result in an obligation to pay compensation and demolish existing buildings.

At DLA Piper, we advise private parties – both companies and individuals – and public authorities on plans for the use of areas, drawing on our thorough understanding of all aspects of the Planning Act. We can also help clients assess whether a specific plan or decision with regard to a plan meets the requirements and is lawful.

Danish law operates with a number of restrictions on the use of areas, e.g. to protect nature and areas. Most of the provisions are found in the Nature Protection Act and in those parts of the Planning Act which concern the use of areas in rural zones.

The Nature Protection Act includes provisions on:

• Protected natural habitats / plant and animal species
• Protection lines, including beach protection line
• International nature reserves
• Conservation areas

Generally, the regulatory framework contains general prohibitions against changes in conditions, construction of new buildings, etc. in rural zones and particularly in nature reserves, and, as an exception to the above, it also contains provisions on permissions and exemptions.

In connection with planning permissions or exemptions, etc. in conservation areas as well as other planning in the areas, a number of administrative rules concerning consultation, etc. of neighbours and others must be observed.

Our specialised lawyers can advise public authorities, private individuals and businesses on matters such as:

• Assessment of whether an exemption or a refusal to grant an exemption is lawful
• Applications for an exemption for new construction projects in conservation areas or areas within the beach protection line, in a rural zone or the like.
• Subsequent process management (e.g. to deal with regulatory requirements for formal or physical legalisation, complaints, etc.)

We advise private parties and public authorities on the climate proofing rules, including the coastal protection rules.

Measures for climate proofing, including coastal protection, are often partly funded by the property owners via the formation of a coastal protection association. This means that it will be necessary to determine the apportionment of construction costs and future maintenance costs. The costs must obviously be apportioned in accordance with the objective criteria of administrative law – not least the equal treatment principle, and this may be quite complicated, especially for major projects.

Some plans and programmes and some specific projects require an environmental assessment.

Today, both environmental assessments of plans and programmes (previously called strategic environmental assessments (SEAs)) and environmental impact assessments of specific projects (EIAs) are governed by the Environmental Assessment Act. Strategic environmental assessments used to be governed by their own act, while environmental impact assessments were governed by the Planning Act.

Until an assessment report is available, a number of plans and programmes cannot be adopted, and specific projects falling within the scope of the annexes to the Act cannot be initiated.

Both assessment types must address a number of specific issues, and some very precise rules set out when and how much public authorities and other potential stakeholders have to be involved.

Our lawyers guide companies, private individuals and public authorities successfully through this process. If relevant, we can participate in a monitoring group in the assessment process. We can also help review published assessment reports and comment on them during the consultation phase, and we can give an opinion on whether the substantive and/or formal rules have been observed. If not, we can also represent clients before the relevant complaints bodies (the Planning Complaints Board and/or the Environmental and Food Board of Appeal).

The so-called "polluter pays" principle means that liability is imposed on the polluting party, most often the operator. The polluter, i.e. the addressee of any enforcement notices issued by public authorities, is not entitled to assign liability for the pollution. Under civil law, however, the parties may agree otherwise.  

In connection with the transfer of real estate, we can help draft the necessary environmental clauses covering the contractual defects liability and the non-assignable polluter liability for environmental matters, e.g. if it is subsequently established that the soil is contaminated.

"Listed activities" (potentially polluting activities covered by the Executive Order on Listed Activities) are subject to regulation in a number of areas, and an environmental permit is required before the activities can be initiated and in case of certain changes and expansions.

We can help you apply for a permit for potentially polluting activities. Our legal services include:

• Negotiations with public authorities
• Assistance in the preparation of environmental assessments and impact assessments  
• Assistance in the drafting of contract documents for technical consultants

In addition, we can assist with:

• Project screening in relation to administrative law
• Assessment of whether regulatory requirements are lawful
• Assessment of additional self-imposed regulation, e.g. from a CSR strategy perspective
• Subsequent process management (e.g. to deal with regulatory requirements for formal or physical legalisation)

We also advise businesses operating in regulated industries or businesses which are subject to notification requirements.

Following the implementation of the EU Environmental Liability Directive in Danish law, public authorities may decide in very extraordinary and serious cases that the polluting business is liable for the damage and must take remediation and restoration measures even if the business in question is not to blame for such damage.

The environmental liability rules are rarely applied, but they may have far-reaching consequences for a business which accidentally pollutes a stream or the like.

It is therefore important for a business facing a potential risk of liability under the rules due to the nature of its activities to take out the right insurance.

In case of serious pollution, it is important to find out immediately how best to remedy and to do so within the framework of the right rules. It is important that relevant administrative decisions are made on the right statutory basis provided by the different sets of complicated rules which are applicable to pollution, and in that connection an assessment must be made to establish whether the rules on environmental liability apply to the situation in question in the first place, or whether other rules may or must be applied instead.

We advise both businesses and insurance companies on the rules governing environmental liability and the consequences thereof. In complicated pollution cases, we often work with technical consultants to obtain all the legal and technical information which is necessary to assess the pollution.

The regions are in charge of mapping out contaminated sites. In general, all properties in urban zones are regarded as slightly contaminated. As a result, some special requirements must be met if soil is moved from a site in an urban zone. Via the site classification system, the municipalities can exempt or include specified areas.  Similarly, the municipalities may ease the analysis requirements in connection with soil removal if the degree of soil contamination in the area is already known. If you are the owner of a contaminated site, we can advise you in this process.  

Contaminated sites may also be classified at "knowledge level 1" or "knowledge level 2". The former means that there is a suspicion of potential contamination of the site based on historical use, while the latter means that contamination has been established to exist.

In most cases, if a site is classified as contaminated or potentially contaminated, the owner's rights will be restricted, and it will have consequences for the owner in relation to tenants, mortgaging and sale. We advise on such restrictions and how to use the site in spite of the restrictions, and we help clients apply for a section 8 permit, which is required to carry out building and engineering works on most classified sites.

If you buy or sell a residential property or a business, you should take into account that the property may be contaminated or that the business may have polluted the site. In addition to the sites that are already classified as contaminated or potentially contaminated, there are many sites on which potentially contaminating activities have been carried out. By way of example, this could be industrial activities or activities of small-scale builders and other trades, former wetlands that have been drained as well as oil, chemical and/or manure storage tanks.

In practice, it is impossible to obtain 100% certainty that a site is not contaminated. But the historical use of the site and a soil analysis will, of course, reveal if a site is seriously affected by contamination.

If you are looking to buy or sell a contaminated or potentially contaminated site, it is a good idea to consult with a specialist in this field. Naturally, we are ready to advise you.

Who is liable to pay compensation if it is established that a site is contaminated? Who is liable to pay if the municipality orders a clean-up? How extensive should the investigations be, and how much of the contaminated soil should be removed? We can help you clarify these matters and advise you on all public law issues and issues concerning liability to pay compensation. In the area of environmental law, claims for compensation include claims concerning unlawful notices and orders, claims against former owners of a contaminated site and contractual claims.

At DLA Piper, we offer legal advice on waste management in general and in specific disputes concerning waste regulation. We can help you understand:

• The municipal allocation right
• The duty to use
• Categorisation of hazardous waste
• Regulatory requirements for waste management in your business
• Import and export of waste
• Manufacturer's liability

The general waste rules are set out in the EU Waste Directive, etc. and implemented in Danish law, mainly in the Environmental Protection Act and the Executive Order on Waste. In addition, a number of specific regulations apply concerning special waste fractions and manufacturer's liability for certain types of waste, including WEEE and batteries. Import and export of waste is regulated by the EU Waste Regulation.

In addition, local rules are laid down in municipal waste regulations and, so, regulation may differ from one municipality to another. Those differences may give rise to a number of disputes, some of which will not be clarified until a decision has been delivered by the European Court of Justice.

Waste charges, however, are mainly a matter of national regulation, but since charges may depend on a number of factors such as the classification of waste, EU law may also play a role in this respect.

We have in-depth knowledge of the rules governing noise emissions from businesses. By way of example, we can help you clarify whether public authorities are entitled to order your business to implement noise abatement measures. If so, we can advise you on how to best comply with the requirements and obtain relevant documentation.

If you neighbour a noisy business, we can advise you on whether the business can be ordered to implement noise abatement measures or the like.

We advise public authorities and private businesses on issues relating to drainage and discharge of wastewater. Our specialised lawyers in this field offer legal advice on issues such as:

• Applications for a discharge licence
• Threshold value requirements
• Self-control requirements
• Requirements for internal drainage systems
• Conflicts concerning the wastewater system of wastewater utilities

In addition, we help clients apply for a licence to discharge directly into the ocean, lakes or streams and are available for any negotiations with the relevant authorities in that connection.