Building exclusion zones

Approval of the plan for reducing the construction exclusion zone

The Environmental Board does not need to approve a plan concerning the construction conditions on the shores and banks, which does not remain in the protected area. If the purpose of the plan is to reduce the construction exclusion zone of the shore or bank, the plan may be submitted to the Environmental Board for receiving their position or approval also before applying for reduction of the construction exclusion zone. This may speed up the procedure for reducing the construction exclusion zone by ensuring that the submitted plan is prepared in accordance with all the requirements and unambiguously. At the initial review of the plan, the Environmental Board can indicate how to ensure the best adherence of the planned activities to the objectives of the shore or bank.  

In particular, the following circumstances need to be referred to in the plan containing the proposal to reduce the construction exclusion zone: 

• Whether the extent of the restrictions for the protection of the shores and banks (limited management zone, construction exclusion zone and water protection zone) is correctly defined
• Whether objects causing differences along the shores and banks (repeatedly flooded area, shore or bank terrace, forest land, densely populated area) are correctly defined
• Whether the plan covers correctly all exceptions enabling construction in the building exclusion zone
• Whether the reduction of the building exclusion zone applied for is unambiguous (e.g. has the same content both in the explanatory note and in the drawings) and covers all necessary construction works (e.g. in addition to the building area also an access road).

Pursuant to § 85 (3) and 133 (3) of the Planning Act, if the plan is not approved, the contradiction of the plan to legislation or to a higher-level plan must be referred to. If a plan is submitted to the Environmental Board for approval before it is adopted, the Environmental Board cannot refuse to approve the plan on the grounds that the construction activities proposed by the plan are in conflict with the objectives of protection of shores and banks and that a future application for reducing the building exclusion zone may not be promising. Therefore, there cannot be any legitimate expectation of the reduction in building exclusion zone after the approval of the plan. 

Changing the extent of the building exclusion zone on the basis of a comprehensive or detailed plan

Reduction of the building exclusion zone is permitted only with the consent of the Environmental Board (§ 40 (3) of LKS). Consideration of granting consent to reduce the building exclusion zone is based on the adopted comprehensive plan or the detailed plan amending the comprehensive plan and on the application justified by the corresponding local government (§ 40 (4) of LKS), i.e. in separate proceedings after the approval of the plan by the Environmental Board and adoption by the local government.

In order to reduce the building exclusion zone, the local government has to submit to the Environmental Board:

• An application containing explanations of how the planning solution takes into account the objectives of protection of shores and banks, and the reasons why it is necessary to reduce the building exclusion zone (i.e. make an exception to the general rule) in this place
• An adopted comprehensive plan, or
• An adopted detailed plan containing a proposal to amend the established comprehensive plan, or 
• An adopted detailed plan if there is no established comprehensive plan.

The procedure for reducing the building exclusion zone may be carried out simultaneously with the disclosure of the plan, but for the purpose of better public involvement, it may also be justified to submit an application for reduction of the building exclusion zone after the stage of disclosure, which may lead to several changes in the planning solution. 

Upon reducing the building exclusion zone, the Environmental Board assesses the compliance of the plan with the objectives of protection of shores and banks, and takes into account the flora, relief, boundaries of land parcels and immovables, existing road and utility networks and established patterns of settlement.

Based on the above circumstances, the local government may also extend the building exclusion zone by means of a comprehensive plan.

The final decision on the extent of the building exclusion zone is made by the local government by establishing the plan. The reduction or extension of the building exclusion zone enters into force upon entry into force of the plan.

Useful extracts from the audit 2007 of the National Audit Office on construction activities on shores and banks

• Clause 39 "Amendment to the comprehensive plan and reduction of EKV is an exception by law and permitted only if justified. If the plan involves an application to reduce EKV, the need for that exemption must also be justified in the decision."
• Clause 41 "The first decision, whether the reduction of EKV is justified, must be taken by the local government. The audit revealed that... of the submitted applications did not include a reason why the rural municipality wanted to reduce the EKV. It can be concluded from this that local governments do not see themselves as playing an important role in the decision to reduce EKV, and they do not think about it in advance. This also causes problems because the role of KeA is primarily to look after the interests of environmental protection, other public interests must be looked after by the local government itself. Amendment to the comprehensive plan for reducing EKV must not be allowed only for the reason that the person could build on the plot belonging to him or her. A person who acquired a plot in an area with a restricted building right cannot assume, based on the immunity of ownership, that it must be possible to amend the restriction imposed in the public interest in his or her favour in any event."
• Clause 48: "If the EKV of one region is reduced several times, it is not enough to analyse the environmental impacts at the level of the detailed plan alone. The real impact of construction in the shore and bank environment becomes apparent only if the combined effects of all activities in the area are assessed. Individual dwellings planned on the shores or banks do not always impose a pressure that could exceed the tolerance capacity of a protected species or community or also aquatic environment. Also, a detached house built on the bank may not damage the natural appearance of the site. If a second, third or already tens of residential buildings are built near the first house, the pressure on the nature will be significantly greater due to the damage caused by construction, the trampling load as well as the amount of wastewater and generated waste.
• Clause "However, permitting construction on the shores and banks cannot be justified solely on the basis of the statement that the construction will not undermine the objectives of protection of shores and banks listed in the Act. The decision must express the substantive reasoning, which led to the conclusion that private interests do not harm public interest when built on the shores and banks in this particular place."
• Clause 78 "Refuse to reduce the EKV in cases when the local government has not justified its necessity in the application. This would help to ensure that local governments analyse the need to amend the comprehensive plan based on the public interest, and to avoid making decisions that conflict with the public interest, and also to significantly reduce the workload of KeA."
• Clause 125 "The only justification for regularisation cannot be that the building already exists; the issuer of the permit must also assess the suitability and compliance of the building with the public interest and the need for regularisation. For example, in some cases it may be possible to remove a building from EKV. Regularisation must be possible only in cases when the owner of an unauthorised building would probably have been able to construct the building even if he had done everything correctly."