1.6 Main instruments
The main instrument in land use planning is the regulatory power in pursuance with the Planning and Building Act. The statutory instruments of this power are structured according to the hierarchy of government and the division of labor between the different levels of government and planning. In principle three levels are empowered with mandates to command different categories of instruments when it comes to public activity planning.
This kind of planning is by and large based on functional division of authorities and responsibilities. In physical planning, however, it should be more correct to divide the system with the related instruments in two tiers, the central state and the local tiers, because the two levels of municipal government in principle are of equal in terms of planning authority, cf. the hierarchal structure of tiers with related instruments for land use planning in the figure below.
Formally as well as in operation, the character of these instruments varies between the levels, cf. Figure 1. In central government planning together with County Governor rules, regulations and guidelines are dominating as well as such instruments regulate the State intervention in municipal planning. Within the municipal division, in the County Municipality and particularly in the Municipality, the instruments are generally more concentrating on provisions and guidelines connected to different categories of plans. Since planning, as a regulatory device, interferes with the real property market where the owners enjoy certain constitutional protection of their economic rights, planning at operational levels will need instruments for overruling these interests, which in some situations will require compensation for losses. However, planning for the implementation of projects can also engender needs for instruments that can be used for deciding on financial matters, especially in distributing financial responsibilities relating to the constructing of infrastructure and community facilities.
For all main categories of plans, the county master plan and municipal master plan, containing policies and regulatory frameworks for the environment, and zoning plans that can cause similar significant effects, an environmental impact assessment is required. Such assessments according to the Planning and Building Act are also required for certain plans and projects pursuant to other legislation. The purpose is to ensure that the environment including natural resources and the community is taken into account during the preparation of the plan or project, and when a decision is taken as to whether, and if so subject to what conditions, the plan or project can be carried out. As early as possible during the preparation of the plan or project, a proposal for a program of the planning and assessment process shall be prepared. This program proposal will describe the purpose of the plan or application, the need for assessment and arrangements for participation. The proposal shall be made available for consultation and public participation.
Proposed plan or application together with an environmental impact assessment shall be prepared on the basis of the prescribed planning and assessment program. Both documents should be made available for consultation and public inspection. Administrative decisions on the program for the planning and assessment process shall be published with the grounds for the decision. The grounds will state how the possible effects of the plan or application and any consultative comments received have been assessed. In addition, there will be statements on what importance has been attached to these inputs in making the decision, particularly as regards the choice of alternatives. In connection to this decision, conditions shall be considered and insofar as necessary laid down with a view to monitoring and remedying possible negative effects of significant importance. The conditions will be set out in the decision.
Figure 1: Divisions of government and planning levels with main categories of statutory instruments according to the Planning and Building Act.
The overall aim and specific purpose of the Planning and Building Act to coordinate over levels and across sectors will raise needs for certain collaborative instruments at any level considered. In this regard there is a general requirement that public bodies or public agencies with tasks concerning use of resources, protection and conservation, physical development, or social and cultural development within the area covered by a county municipality or a municipality shall give respective planning authorities necessary assistance in planning activities. Such bodies shall, at the request of the County Municipality, alternatively the Municipality, participate in advisory committees established by the county or municipal council in order to promote cooperation in planning.
The Municipality has a special duty in initiating cooperation as the operative planning and building authority. In matters pursuant to the Planning and Building Act the municipal planning and building authorities shall cooperate externally with other public authorities. Likewise, these authorities shall collect comments in matters pertaining to the fields of responsibility of these external authorities concerned. Only after the County Municipality or Municipality and the corresponding bodies concerned have expressed an opinion, the Ministry may exempt the public bodies or agencies from participation in such cooperative committees. The County Governor has a particular responsibility and role in organizing this kind of collaboration.
Consultation, publication and information are important ingredients in collaboration and participation. Planning at any level should make an effective effort at an early stage of the planning work to inform the public about planning activities and the legal implications. Affected individuals and groups should be given an opportunity to participate actively in the planning process. When a draft of the county master plan, land use part of a municipal master plan or a zoning plan is published, it should be pointed out whether there are alternative drafts of statutory plans that have not been or will not be made public. If so, it shall be made clear that the draft of such alternatives should be available at the office of the planning authority. Any individual has the right, at the office of the authority concerned, to get information about alternative draft plans and documents forming the basis for the draft plans, with certain legal exceptions.
In the Municipality the planning authority is mandated to initiate planning, to adopt regulations, to approve applications according to such regulations, to initiate arrangements that will transfer the civil rights for the use of land into ownership that will fulfill the planning authority's objectives for this area, and finally to arrange financial conditions for the implementation of constructions. In municipal government the division between legislative and executive power is balanced through a discretionary mandate that allows the municipalities to issue regulatory provisions and at the same time decide on ends and means for the realization of local policies. This balancing of the legislative and executive powers gives the Municipality to some extents the opportunity to formulate and adopt legal articles of association and legally binding plans, in addition to make dispensations from the Planning and Building Act according to institutional capacities of the Municipality and local needs. The highest municipal authority for adopting legally binding decrees and for deciding on substantial matters is the same body, the Municipal Council. Although some of these statutory rights of power are obligatory, the mandate of the planning authority is in general a discretionary one. Consequently, it will be up to the judgment of the planning authority to decide how all these rights of power should be applied, and in some cases, whether they should be applied at all, provided that no other authority interferes from superior or equal tiers.
Within the municipal division financial means in physical planning and activity planning are allocated through the same budgeting mechanisms. Formally, these mechanisms are in a somewhat weaker position in physical planning compared to activity planning, although they might be decisive for the implementation of public building projects and other kinds of initiatives as well. The connecting of legal means under regulatory power to financial means of the municipality will in principle take place under the preparation of the municipal master plan, when the overall land use planning and the activity planning are being coordinated.
Still, the final municipal decisions in these matters are also based on a discretionary balance of priorities. It means that there is no necessary linkage between the municipal ambitions for the development and the budgets allocating money for the corresponding responsibilities to implement these developments. In terms of legal requirements, the municipalities do not enjoy the same discretional freedom when prioritizing financial means for municipal activity planning purposes, particularly for two reasons. Firstly, legal requirements and individual legal rights especially related to education, health and social services have a stronger claim on municipal funding than the regulatory power of planning. Secondly, the municipal freedom to allocate money is constrained through earmarking of money by the central government.