sou · H1B359 · 2013-08-30 00:00:00 — Det ligger utanför denna utrednings uppdrag att granska och föreslå ändringar i de bestämmelser som möjliggör rådighetsinskränkningar av hälsoskydds-, miljöskydds- och säkerhetsskäl. Med hänsyn till den mängd bestämmelser det rör sig om och hur vitt skilda områden som omfattas är det heller inte möjligt. En sådan omfattande granskning görs troligen bäst i samband med en allmän översyn av regelverket inom varje särskilt område. Två områden där det finns ett behov av en sådan översyn är rådighetsinskränkningar i samband med inrättandet av vattenskyddsområden och rådighetsinskränkningar med stöd av artskyddsförordningen. The Inquiry was tasked with analysing the legislation that allows restrictions on the use of land and (disposition restrictions) on grounds of protection of human health or the environment, or on grounds of safety, with the aim of identifying instances where compensation should be given even though the intervention occurred on these grounds. The remit also included taking a position on the more detailed implications of Chapter 2, Article 15, third paragraph of the Instrument of Government, analysing the implications of the relevant conditions and highlighting problems that occur regarding demarcation. The terms of reference stated that one of the premises of the Inquirys work should be that the currently applicable principles covering compensation for disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety, should continue to apply in future, and that normally, compensation is not to be given when a disposition restriction is motivated on these grounds. A premise for instances where it should be possible to consider giving compensation is that the individual concerned is not responsible for the intervention and that it is unreasonable to expect the individual concerned to bear the entire financial burden caused by the intervention. Based on these premises, the Inquiry is to propose the legislative amendments necessary to achieve appropriate and, as far as possible, uniform regulation of the issue of compensation. The Inquirys proposals are to express clear, well-defined and unequivocal principles, and meet high standards concerning clarity and predictability for the application of the law. The remit is restricted in that the Inquiry is only to propose amendments to provisions on compensation for disposition restrictions in the Swedish Environmental Code and the Planning and Act if these are necessary to create a consistent and uniform regulatory framework. One premise for such proposals is that current regulations on the instances in which compensation is to be given and the size of the compensation are to remain in place. Aim of the Inquiry The initial aim of the Inquiry was to identify the provisions in applicable law covered by Chapter 2, Article 15, third paragraph of the Instrument of Government which allow the public institutions to limit the use of land or on grounds of protection of human health or the environment, or on grounds of safety. The Inquiry has also tried to give an account of the principles in applicable law that may have a bearing on the issue of when compensation is to be given in these instances. The Inquiry subsequently took a closer look at a representative selection of the provisions in order to give an account of the legislators reasoning on entitlement to compensation when the provisions were introduced and, based on this, identify the considerations and principles that guided the legislators in these instances. On the basis of this examination of the legislators deliberations and the application of the principles, the Inquiry drew certain conclusions as to when compensation should be given in connection with disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety. The aim of the Inquiry was also to use the conclusions drawn to clarify how the issue of compensation for disposition restrictions should be dealt with in the legislative process and in practice. The Inquiry also considered whether regulations covering the issue of compensation in applicable law are appropriate and uniform, or whether the provisions should be amended or supplemented. In this area, the Inquiry also tried to highlight the practical difficulties that exist in applicable law and present proposals on how these difficulties can be overcome. There are many provisions in applicable law that allow disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety, which are found in a large number of laws, ordinances and regulations. The aim of the Inquiry was therefore not to specifically examine each individual instance where a restriction of land or use on these grounds may occur. Instead, the aim was to examine the legislation that allows such restrictions on principle, to consider when an entitlement to compensation should be generally available, and to make legislators and those applying laws aware of practical procedures for handling the issue of compensation so as to avoid unreasonable results. The Inquiry does not present any legislative proposals, but has drawn conclusions and given consideration to various issues that are presented especially in Chapter 5–7 and, more generally, in this summary. Disposition restrictions in constitutional terms Under the Instrument of Government, the basic premise is that individuals are free to dispose of their real property (land and ) as they wish. The public institutions may only make use of such property or limit an individuals opportunities to freely decide over it under certain conditions. Since the premise is that individuals are free to dispose of their property, it is a disposition restriction in constitutional terms when a public institution, without making use of a property, obstructs certain use of it, e.g. through prohibitions and injunctions or by introducing permit requirements for a certain activity. Another example is revoking a permit, or associating it with conditions that obstruct certain use. Acts that can be considered expropriation or other such disposition are not disposition restrictions. It is usually not difficult to determine what constitutes expropriation or other such disposition and what constitutes a disposition restriction, but there can be instances where the difference is not clear. When it is not possible to be completely certain of whether a matter concerns a procedure similar to expropriation or a disposition restriction, there are good reasons to opt for the alternative that gives the individual better protection against intervention on the part of the public institutions. Disposition restrictions that mainly target the use of property that cannot be considered as comprising land or (such as denying a permit to serve alcohol, Chapter 8, Section 1 of the Alcohol Act) are not covered by the constitutional protection provided by Chapter 2, Article 15 of the Instrument of Government. Under the abovementioned provision, disposition restrictions may only be imposed if they are intended to satisfy a pressing public interest. Guidance as to what is to be considered a pressing public interest in constitutional terms can be found in the purposes of expropriation in Chapter 2 of the Expropriation Act (1972:719), the management provisions in Chapters 3 and 4 of the Environment Code, and the interests listed in Chapter 2 of the Planning and Act (2010:900). The final position as to what constitutes a pressing public interest must be determined in each individual case. In practice, this becomes a proportionality assessment that pits the interests of the individual against those of a public institution. However, the requirement that the publics interest is to be pressing cannot be considered as being fulfilled if each advantage that favours a public institution is allowed to be the decisive factor. Disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety The general rule is that an individual is to be given compensation when the public institutions restrict the use of his or her land or , as laid down in Chapter 2, Article 15, second paragraph of the Instrument of Government. However, the opposite applies when the disposition restriction is imposed on grounds of protection of human health or the environment, or on grounds of safety, as laid down in Chapter 2, Article 15, third paragraph of the Instrument of Government. Instead, when it comes to disposition restrictions that occur on these grounds, the provisions of ordinary law apply and the basic premise is that compensation is not given. Accordingly, a crucial factor regarding compensation is whether a measure may be considered motivated on grounds of protection of human health or the environment, or on grounds of safety. It is difficult to precisely define the area covered by the third paragraph. In its examination, the Inquiry used a relatively broad interpretation of the concept, and an annex to its report includes a list of the main provisions that allow disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety. Fundamental principles for entitlement to compensation There are certain fundamental principles that may be considered generally applicable in the matter of entitlement to compensation for disposition restrictions. These principles can be derived from applicable law and have, to varying degrees, been the determining factor in the legislative process as to whether a disposition restriction is to entail an entitlement to compensation for the individual. The principle of proportionality plays an important role when drafting legislation and in court hearings on matters involving disposition restrictions. When deciding whether a certain measure involving a disposition restriction is proportional, entitlement to compensation is an essential parameter. The legal security aspect and general legal principles mean that there are fewer opportunities for public institutions to restrict a certain activity without giving compensation if the individual had well-founded grounds to expect the activity to continue without restriction, as opposed to if there were grounds for assuming that the activity would not be able to continue without restriction. The precautionary principle and the polluter pays principle express the general premise found in Swedish and European law that compensation normally is not given in connection with interventions aimed at activities that entail a threat to security, health or the environment. The principle of lawfulness means that the use of land or must be lawful for a restriction to form a basis for entitlement to compensation. Exceptions from the principle are generally made in instances where the use of land or did not actually contravene any standards when it began, but a subsequent regulation has meant that the activity has become illegal. Compensation may then be considered in certain instances. In general, a certain qualification concerning the measure is required for compensation to be given. Interventions of a more trivial nature should not entail an entitlement to compensation. is compensation generally given for value that is lost due to expectations of a change in the use of land not being realised. Principles of the law of damages concerning such matters as adequate causality, damage that can result in compensation, participation of the injured party, the obligation to limit ones damage, etc., can affect entitlement to compensation in several ways. The compensation provisions in some of the laws that allow disposition restrictions are designed in accordance with these principles. The principles can also serve as a supplement when there are no rules that cover a more detailed assessment of what should be considered as giving entitlement to compensation. The state aid rules. The rules under EU law on prohibited state aid mean that, in certain situations, it is prohibited to provide compensation to a business to compensate for costs arising as a result of requirements set in accordance with binding EU rules. The considerations governing entitlement to compensation for disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety The Inquiry analysed a representative selection of the provisions in applicable law that allow disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety. The purpose of the analysis was to find out which public and private interests legislators took account of when deciding whether a disposition restriction should entail entitlement to compensation. In its analysis, the Inquiry also wanted to clarify if the principles listed in the previous section were governing in the assessment, and if so, to what extent. Following the review of the legislators considerations, it can be noted that the abovementioned principles appear to varying degrees in the discussions that were conducted. It can also be noted that in practice, it is always a matter of conducting a proportionality assessment in which the interests that are pitted against each other are attributed different degrees of importance depending on which principles are relevant in the individual instance. The exact considerations and principles that affect the proportionality assessment, and the importance attributed to them, vary from case to case depending on the nature of the relevant legislation. The perception of what, over time, may be considered reasonable in different situations and the degree of importance that is to be attached to the different principles are also affected by political perceptions and values. For this reason, the degree of importance attached to the different principles and other considerations have also varied over time. The possibility of compensation for disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety, is greater in the following instances. -In the event of measures aimed at preservation, e.g. measures that are not primarily intended to avert a serious risk from a certain activity. -If the activity conducted is normally harmless or of benefit to society. The possibility of compensation for disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety, is less likely in the following instances. -If the measure is intended to avert a serious risk. -If the activity concerned causes the risk that the measure is intended to avert. -If the social interests to be protected are of a particularly important nature. Other aspects that can affect entitlement to compensation in a given instance include the following. -The choice of the alternative that is least intrusive for the individual. -The opportunity to limit the damage in another way, such as the introduction of entitlement to an exemption or the announcement of transitional provisions. -Socio-economic considerations, such as the states financial ability to pay compensation or the financial gains that a certain measure entails for society as a whole. -The effective implementation of the measure. -Other possibilities for the individual to receive compensation. -Rules under EU law, e.g. the rules on illegal state aid. Are the current compensation rules appropriate? The Inquiry has concluded that, with one exception, the compensation system is coherent even if the compensation provisions may vary. Since entitlement to compensation in the different laws was designed in accordance with the special conditions each law is intended to regulate, the existing differences fulfil a function. The Inquiry therefore does not consider there is anything to be gained from coordinating or standardising these provisions more than is currently the case. The exception is the provisions on compensation when reconsidering water undertakings under Chapter 24, Section 5 of the Swedish Environmental Code. These provisions are inconsistent with the applicable principles for compensation for disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety, and there is reason to consider whether the compensation provisions should be removed. A closer examination of the practical consequences of such a proposal is currently being carried out within the framework of the Water Undertaking Inquiry (M 2012:01). No changes to applicable rules are therefore proposed in this context. Are additional compensation provisions needed? Although the current compensation rules are generally consistent with applicable principles and guidelines for entitlement to compensation, there may be exceptional cases where it appears reasonable to deviate from these principles and compensate individuals for damage they have suffered. However, the situations that currently do not entail an entitlement to compensation but where, on grounds of equity, such entitlement could be justified are so different that it is difficult to pinpoint the specific situations before they occur, and even if this could be done, it is not possible to introduce legislation for each individual instance. In order to identify all these distinct exceptional instances, the Inquiry considered the possibilities of designing a general compensation provision, but reached the conclusion that a provision of this kind should not be introduced. Although a general compensation rule would create increased flexibility in application – which in many ways appears desirable – a solution of this kind involves too many risks. The provision would be difficult to apply and, to far too great an extent, would leave assessment of situations in which compensation should be given to whoever applies the provision. A rule of this kind would not meet the high demands on clarity and predictability aimed for in application of the law. Under a general compensation provision, uncertainty concerning when compensation is to be given would extend to those kinds of disposition restrictions where it is currently clear that no compensation should be given, e.g. disposition restrictions as a result of measures taken pursuant to the rules of consideration in Chapter 2 of the Environmental Code. There would be a risk that uncertainty in application would result in deviation from the principles to an extent that was totally unintended, and that the provision would consequently entail a significant departure from several accepted principles of Swedish and international environmental law. How can unreasonable consequences be avoided without an entitlement to compensation? When situations arise where there is currently no entitlement to compensation but where such an entitlement could, on grounds of equity, be motivated, it must be possible to find a good solution to the situation as regards application so as to avoid individuals having to bear an unreasonable financial burden. The Inquiry reviewed several types of situations where a strict application of applicable principles for compensation could lead to unreasonable results. The Inquiry has also presented proposals as to how these situations should be dealt with in terms of application so as to avoid a measure involving a disposition restriction having an unreasonably severe impact on an individual. Generally speaking, the question of whether it is reasonable for a measure to be taken without providing compensation must ultimately be determined by balancing the interests in the individual instance. If entitlement to compensation does not exist in a specific instance, the proportionality assessment is affected and, consequently, also the opportunities for the public institutions to take the measure. In a situation where a desired result can be achieved in several ways and one of the measures entails entitlement to compensation while the other does not, it is the obligation of whoever applies the law to consider the alternative courses of action and, when a choice must be made, consider whether or not the legislators intended compensation to be given. Entitlement to compensation must be seen in a broader perspective The Inquiry has concluded that, to a significant degree, the scope of entitlement to compensation in practice is determined in the application of the law. To some extent, this is due to the fact that the design of the compensation provisions is relatively general, which is necessary in order to identify the situations intended to be regulated. However, it seems that in many instances, uncertainty concerning application of disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety, affects the possibilities for individuals to receive compensation. Uncertainty concerning which provisions are to be applied in a certain situation and how intrusive measures can be taken pursuant to a specific authorisation also create uncertainty as to which disposition restrictions entail entitlement to compensation. It is therefore not entirely possible to answer the question of whether entitlement to compensation in a specific instance is appropriate without first answering the question of how the provision allowing a disposition restriction is to be applied, and how this relates to other provisions in the area. It is beyond the remit of this Inquiry to examine and propose amendments to the provisions that allow disposition restrictions on grounds of protection of human health or the environment, or on grounds of safety. is this possible, considering the number of provisions involved and the wide range of areas concerned. It would probably be best to conduct such an extensive examination in connection with a general review of the regulatory framework in each specific area. Two areas where such a review is needed are disposition restrictions in connection with the of water protection areas and disposition restrictions pursuant to the Species Protection Ordinance. 1Utredningens uppdrag och arbete Bakgrunden till utredningens uppdrag är ändring i regeringsformens regler om egendomsskydd. Ändringen innebar bland annat att det i 2 kap. 15 § tredje stycket regeringsformen klargjordes att vid inskränkningar i användningen av mark eller byggnad av hälsoskydds-, miljöskydds- eller säkerhetsskäl gäller i fråga om ersättning vad som följer av lag. Utredningens uppdrag är att analysera den lagstiftning som möjliggör inskränkningar i användningen av mark och byggnader (rådighetsinskränkningar) av hälsoskydds-, miljöskydds- och säkerhetsskäl i syfte att identifiera de fall där ersättning bör ges trots att ingripandet har skett av dessa skäl. För att kunna göra det måste utredningen ta ställning till den närmare innebörden av 2 kap. 15 § tredje stycket regeringsformen, analysera de aktuella rekvisitens innebörd och uppmärksamma förekommande gränsdragningsproblem. Utredningen ska väga olika principer för ersättning vid rådighetsinskränkningar av hälsoskydds-, miljöskydds- och säkerhetsskäl mot varandra för att komma fram till en ändamålsenlig ordning och eftersträva att närliggande situationer behandlas lika i syfte att så långt som möjligt åstadkomma ett konsekvent utformat ersättningssystem. Utredningen ska ha som utgångspunkt att de principer för ersättning vid rådighetsinskränkningar av hälsoskydds-, miljöskydds- eller säkerhetsskäl som gäller bör gälla även i fortsättningen. Principen om förorenarens betalningsansvar och andra närliggande principer på miljöområdet gör sig lika starkt gällande som . Utredningens uppdrag och arbete En övergripande utgångspunkt ska vidare vara att ersättning normalt inte ges då en rådighetsinskränkning motiveras av hälso- skydds-, miljöskydds- eller säkerhetsskäl.