Questionnaire: EIA and Urban Development Austria
1. Application of Council Directive No. 97/11/EC in the Member States
• In Austria, the EIA Directive was implemented at federal level: the Federal Act on Environmental Impact Assessment (UVP-G 2000) stipulates environmental impact assessments for certain projects which, due to their character, size or location, may be expected to have substantial impact on the environment. The UVP-G was enacted in 1993 and comprehensively amended in the year 2000 (in application of Council Directive No. 97/11/EC amending the EIA Directive). In applying Council Directive No. 97/11/EC in Austria, problems were encountered with the project types urban development projects and industrial-estate development projects since these types of projects would have required an EIA at the planning level (SEA). However, Austria did not take this approach since the EIA Directive essentially addresses concrete projects. Austria therefore believes that it is more effective to perform a (future) strategic environmental impact assessment for projects on the planning level. Thus the implementation of lit. 10 a and b of annex II of Council Directive No. 97/11/EC amending the EIA Directive applies to concrete projects (e.g. shopping centres, outdoor or indoor car parks, industrial or business parks). The procedure and criteria for these projects do not differ from those for other projects for which an EIA must be performed (e.g. industrial plants). • Austria has limited experience with EIA procedures for urban development projects. To date there have only been few urban development projects requiring an EIA, which is also due to the limited period of time for which the provisions have now been applied. EIA procedures for several shopping centres and a stadium are pending or have already been concluded. The Federal Ministry of Environmental Affairs is currently drawing for leisure and trade projects, which is intended to be an aid environmental impact statement. The guide will include a focus traffic, transport and space so as to ensure a minimum of compatible and sustainable planning on the project level as well. • up an EIA guide in preparing an on the topics of environmentally
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Therefore the European EIA provisions are of rather limited practical relevance for urban development projects in Austria, given that urban construction projects (housing projects) in particular are not subject to a mandatory EIA. However, major
shopping centres, indoor car parks and projects comprising large outdoor car parks must be subjected to an EIA at the stage of the approval procedure, which results in an area of application not to be underestimated. • For the above reasons, there is no mandatory EIA in physical development planning. However, the land use provisions of certain Federal Provinces provide for a so-called "spatial impact analysis" to be conducted before land use plans or land development plans are finalised for certain project types (mostly shopping centres, and in most cases projects for which an application has been submitted). There are no legal provisions specifying the subject and scope of a spatial impact analysis. However, a thematic framework that also includes environmental aspects has been defined in agreements between Federal Provinces on the political level. Although the likely effects on the environment are usually examined for a specific project, they must eventually be assessed for the entire spectrum of possible uses permissible under the applicable land use provisions. For example, if the project envisaged is a furniture retail centre with sales rooms comprising 25,000 m², the typical customer frequency figures for other types of retail markets of this dimension must equally be taken into account. Problems: Ø Given that the EIA is only performed on the project level in the course of approval procedures, it is hardly possible to cover cumulative effects, especially those resulting from a combination of different projects (mixed urban structures). The following procedural problems have been identified so far: The project documents are often incomplete; often no clear information is given on the project's size and/or its individual constituents; in some cases project applicants make substantial changes to the project during the EIA procedure. • Chances: The chances presented by EIA for urban development projects are identical to the general aims and principles of EIA: Ø Ø Improved project planning thanks to the enhanced consideration of potential effects on the environment and the involvement of those concerned. Private project applicants can be obliged to implement or finance compensatory measures, which would be of particular interest in the field of urban development. On the level of spatial planning (land use plan, land development plan) these requirements can only be enforced if land use provisions allow for civil law agreements (contracts), which only partially applies in Austria.
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2. Screening
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Just as Germany's implementation of the Directive, the Austrian UVP-G 2000 combines two screening elements: threshold values and case-by-case examinations. Generally, a difference must be made between new construction projects, projects in protected areas, and modifications. Ø Ø For new construction projects, Environmental Impact Assessments are only mandatory if certain thresholds are exceeded (see annex 1, column 2). For (new) construction projects in protected areas, case-by-case examinations are stipulated if certain thresholds are exceeded (annex 1, column 3). An EIA must be performed if the case-by-case examination shows that the project would have substantial adverse effects on the protection purpose for which the protected area has been established Modification projects must be subjected to a case-by-case examination if they exceed a certain size. If this examination shows that the project would have substantial effects on the environment, an EIA must be performed.
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Problems in the process of implementation: In its original version, the Federal Act on Environmental Impact Assessment (UVP-G 1993) only provided for fixed thresholds and thus no screening. When the Act was amended in 2000, this had to be changed in order to take account of the sensitivities of individual project locations. In view of the large number of projects for which an EIA would potentially be required, it also seemed justified to introduce a more flexible regime in the form of case-by-case examinations. The business community in particular welcomed the creation of this new instrument. The competent authorities initially expected an increase in the administrative workload, which, however, has not occurred to date. Defining the categories of protected areas for the purposes of the EIA involved particular problems. Here the business community and farmers successfully called for a restriction to a small number of categories.
3. The EIA Procedure
• Scoping: Mandatory scoping as stipulated in Article 5 (2) of Council Directive No. 97/11/EC amending the EIA Directive is implemented in Article 4 (2) of the UVP-G 2000. A preliminary procedure (Scoping) must be performed if requested by the project applicant (i.e. optionally). The authority must give its opinion on the papers made available in the matter (basic outline of the project and outline of the environmental impact statement). It is to point out obvious shortcomings and specify further information required. A consolidated consent procedure must be performed for urban development projects falling under the provisions of the UVP-G 2000, i.e. a single permit contains decisions on all approvals stipulated by the relevant administrative provisions. The
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provincial government decides on consent procedures in the first instance; the Independent Environment Tribunal has competence in the second instance. The Austrian UVP-G 2000 provides for two different EIA procedures - the "regular" EIA procedure and the simplified EIA procedure. In the case of urban development projects, the simplified procedure must be applied. • Participation of citizens and authorities: Citizens (i.e. anybody) and cooperating authorities have the right to express their opinion in the EIA procedure. They have the right to inspect the application, the environmental impact statement and the other documents required and give an opinion on them. Their opinions must be taken into consideration when a decision is taken on the project. Transboundary participation: Article 7 of Council Directive No. 97/11/EC amending the EIA Directive is implemented in Article 10 of the UVP-G 2000. If a project might have significant effects on the environment in a foreign state, the authority must inform that state as early as possible, but no later than the public. If the country wishes to participate in the EIA procedure, it must be provided with the relevant papers and must be given the opportunity to submit comments. Tasks and duties of the project applicant and competent authority: Ø Ø The project applicant must submit an application containing the project documentation and the environmental impact statement. The competent authority must perform the EIA procedure, i.e. preliminary procedure (if applicable), assessment of the application, transfer (including the environmental impact statement), public inspection, drawing up and transfer of the summary assessment, public hearing (if applicable), hearing of the parties, issue and publication of the permit.
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Overview of the EIA procedure The responsibility for carrying out the EIA procedure lies with the Provincial Government, which is to conduct a consolidated consent procedure and decide on all material requirements for development consent in a single permit. The UVP-G 2000 provides for a preliminary procedure to be carried out upon request by the project applicant. The request for preliminary procedure must contain a basic outline of the project and an outline of the environmental impact statement. The authority is to submit its comments hereon within 3 months after having seized the co-operating authorities and any third parties. The project applicant must submit an application containing the documentation required under the applicable administrative provisions as well as the environmental impact statement. (EIS). The application, the EIS and all other documents must be available for public inspection in the host municipality and at the authority for at least six weeks. Anybody has the right to submit comments on the project and on the EIS.
The authority then is to commission experts with the preparation of a summary assessment of the environmental effects. The authority can choose to hold a public hearing on the full procedure in keeping with the provisions of the Austrian Allgemeines Verfahrensgesetz - AVG (General Administrative Proceedings Act). It must, however, always hold a hearing of the parties. The decision must be taken no later than six months after submission of the application, in accordance with the consent criteria set forth in the relevant administrative provisions and the additional criteria set forth in Article 17 UVP-G 2000. The following parties have locus standi with right of appeal and the right to file complaints with courts under public law: neighbours, the parties stipulated by the applicable administrative provisions, the ombudsman for the environment, the water management planning body, the host municipality and neighbouring municipalities which could be affected by significant adverse effects of the project. Citizens' groups may participate as parties involved with the right to inspect the files. The permit must be available for public inspection. Appeals must be filed within four weeks. The Independent Environment Tribunal in Vienna has appellate jurisdiction. Appeals against its decision may be filed with courts under public law. The authority must be notified of the project's completion and must perform an acceptance inspection. Once the administrative order becomes final, the competence passes to the authorities competent under the applicable administrative provisions.
Project applicant
Authority
Public
Preliminary procedure
Application Project documentation Environmental impact statement
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Review of application
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Transfer to the co-operating authorities, ombudsperson for the environment, municipalities, and Federal Ministry of the Environment, which submit comments thereon
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Public inspection of all documents in the host municipality and at the authority
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Period of 6 weeks for public inspection and written comments
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Preparation of a summary assessment
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Transfer to the project applicant, co-operating authorities, ombudsperson for the environment, and water management planning body
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Public hearing on the project (only for large-scale projects, optional)
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Hearing of the parties
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Right of appeal to the Independent Environment Tribunal
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Decision: Publication of the permit
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Public inspection in the host municipality
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Notification
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Acceptance inspection
Diagram: The EIA procedure (simplified procedure)
4. Industrial estates and urban development projects
• The UVP-G 2000 defines threshold values for projects that must be subjected to an EIA or a case-by-case assessment. Assessment is not mandatory for projects falling below these thresholds unless they are spatially related to one or several other projects of the same type (see point 5, cumulation of effects). Industrial estates and urban development projects are defined in detail in the UVP-G 2000. The following types of projects are specified in annex 1 of the UVP-G 2000: Ø Ø Ø Shopping centres Outdoor or indoor car parks accessible to the public Industrial or business parks
Shopping centres are buildings and compounds with sales and display rooms of commercial and industrial companies as well as related service and leisure facilities that are characterised by spatial proximity and form an operational or functional unit. The definition covers both typical shopping centres with several shops and specialised markets (DIY markets, furniture retail centres). Outdoor or indoor car parks accessible to the public must also be subjected to an EIA. This type of project is meant to cover all urban development projects provided that they comprise the construction of a public outdoor or indoor car park of a certain size (e.g. cinemas, stadiums, exhibition buildings).
Environmental impact assessments are not stipulated for other types of urban development projects apart from those mentioned above. Accordingly, there is no mandatory EIA procedure for housing projects. The project type industrial-estate development projects included in Council Directive No. 97/11/EC amending the EIA Directive was implemented in Austria by stipulating environmental impact assessments for industrial and business parks. Again, the Austrian legislator has restricted applicability to concrete projects, which are defined in more detail in the UVP-G: Industrial or business parks are areas that are developed by a builder and operator and are provided with the required infrastructure for the joint industrial or business utilisation by several companies, which are characterised by spatial proximity and form an operational or functional unit. This project type is located between a strategic environmental impact assessment for policies, plans and programmes (SEA) and an EIA for projects, given that a decision can only be taken on the space used for industrial or business facilities and the related development infrastructure. In many cases it will not be possible to identify the specific businesses which will acquire office space or sales rooms in the projected industrial or business park. Accordingly, the formulation of the project documents is more general, and possible effects on the environment can be estimated and assessed less exactly than, for example, in an EIA for a specific industrial plant. • The industrial and business estates to be included in the land use plan are not subjected to an EIA since they do not constitute specific "projects" as defined in the UVP-G 2000. They are plans and thus do not fall under the EIA Directive but, in certain cases, under the SEA Directive. As regards urban development projects and industrial zones, the Austrian UVP-G does not make a distinction between projects on the outskirts and projects in builtup zones. This means that projects of this type that exceed certain capacity thresholds must be subjected to an EIA independently of their location. Projects of other types, such as hotels or camp-grounds, are only subjected to an EIA if located outside established settlement areas. Article 3a of the UVP-G2000 contains the relevant provisions for project modifications. The main principle is as follows: modifications of projects defined in Annex 1 resulting in a capacity increase amounting to at least 50% of the threshold value specified in Annex 1 must be assessed on a case-by-case basis to determine whether significant harmful, disturbing or adverse effects on the environment are to be expected and would necessitate an EIA.
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5. Cumulation of effects from several projects
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The UVP-G 2000 contains a special cumulation clause (Article 3 (2) and Article 3a (6)) that takes into account the rulings of the ECJ and ensures that the performance of an EIA can also be required for smaller projects (i.e. projects falling below the threshold values set forth in Annex 1.) The cumulation clause is to forestall two potential ways of avoiding a mandatory EIA: Ø Ø splitting a project between several different operators, targeted project planning to stay slightly below the applicable threshold value.
If projects fall below the relevant threshold value set forth in Annex 1 but are spatially related to other (planned or implemented) projects of the same project type, the authority is to examine on a case-by-case basis whether significant adverse effects on the environment are to be expected due to a cumulation of the effects resulting from these projects. For example: a project applicant is planning to erect a new shopping centre next to an existing shopping centre. If the criteria specified in the UVP-G 2000 apply (e.g. both projects taken together exceed the threshold value), a case-by-case assessment must be performed to determine whether significant effects on the environment are to be expected. If this is the case, an EIA must be performed for the new shopping centre to be erected.
6. Monitoring
• Provisions on Monitoring (post-project supervision) are only set forth for projects that are subject to the "normal" EIA procedure. This means that post-project supervision is not required for urban development projects and industrial-estate development projects, since these project types are subject to the simplified EIA procedure only.
7. Strategic Environmental Assessment (SEA) for plans and programmes
• The UVP-G 2000, adopted in application of Council Directive No. 97/11/EC amending the EIA Directive, does not contain elements of the SEA. Since several plans and programmes fall under the competence of the Federal Provinces, the SEA Directive will most probably be applied in Austria by way of the individual material laws (legislation on land planning, water management and waste management). There are no plans for a separate federal act on SEA. Studies are currently being conducted to determine the SEA Directive's area of application in Austria and prepare suggestions on its integration into the Federal Provinces' land use laws. The task of observing spatial developments within the respective area of planning competence and observing the effects of measures and provisions by sovereign authorities forms an integral part of land use planning by any authority. Some Federal Provinces (e.g. Styria) have set periodic limits (e.g. 5 years) for this purpose.
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8. European Network of Experts in Urban Development Law
• Points of special interest: ⇒ Assessment of alternatives in urban development ⇒ Monitoring in urban development – Control approaches and mechanisms ⇒ Relation SEA– EIA ⇒ Criteria and indicators for assessing environmental effects.