World Planning Schools Congress
12th-15th of July 2001
Track 16 Planning and Law
Prof. Dr.jur., Chair of Spatial Planning Law, Dep. of Spatial Planning,
University of Dortmund
Extending Spatial Planning From
National to Supra-National (European)Scale.
Which Issues have the EU-Memberstates´ Spatial Planning Legislations to Face ?
Fakultät Raumplanung/ Lehrstuhl Rechtsgrundlagen der Raumplanung
D 44221 Dortmund, POB 500500, Germany
Tel.++49(231) 755 2295/3217/2219 Telefax ++49(231) 755 3424
Extending Spatial Planning From National
to Supra-National (European)Scale:
Which Issues have the EU-Memberstates´ Spatial Planning Legislations to Face?
1. Spatial Planning - an Issue at National
and Supranational Level *
.1. Recent Renaissance of Spatial Planning *
1.2. Some Historical Remarks *
2. Antithetical Models of Spatial Planning *
2.1. The French Aménagement du Territoire and the German Raumordnung as Protagonists *
2.2. European Spatial Development Policy as a Synthesis ? *
3. Spatial Planning within a Constitutional and Legal Pattern of Powers and Jurisdictions *
3.1. Differentiation between Comprehensive and Sectoral Planning *
3.2. Spatial Planning - Programme-, Plan-, Project-related ? *
4. Reasons for Spatial Co-ordination *
4.1. Potential Spatial Planning Issues *
4.2. Motivations for Joining/Refusing to Join the Co-ordination Procedures *
4.3. Data Collection for Spatial Analysis and Control of Spatial Efficiency *
4.4. Arguments for Spatial Planning at Supra/ International Level *
4.5. Diversity and Subsidiarity as Restricting Principles *
5. Legal Effects of Spatial Co-ordination *
6. The Role of Law with Respect to Spatial Planning *
6.1. Pattern of Powers and Jurisdiction as a Legal Framework for Co-ordination *
6.2. Impact of Environmental Law on Spatial Planning Legislation *
6.3. The Role of the Lawyer : "Notary", not Initiator of Changes *
7. Convergence of Spatial Planning Systems? *
Extending Spatial Planning From National to Supra-National
Which Issues have the EU-Memberstates´ Spatial Planning Legislations to Face ?
Planning - an Issue at National and Supranational Level
1.1. Recent Renaissance of Spatial Planning
Recently the European Conference of Spatial Planning Ministers (CEMAT) and the Directorate General XVI of the EU Commission have finalised the document of a European Spatial Development Perspective (ESDP) as a first step on the way to a European Spatial Development Policy. In 1999 an OECD Conference signalled an international interest on the issue of spatial planning. In particular the EU-member states, but as well non-member states have to respond in terms of legislation, governmental organisation and administrative structure to spatial planning activities on supra-national, e.g. EU-level. This applies in particular to those, which are candidates for EU-membership, as many east-European countries do. Different to those west-European countries, which dispose since the mid-sixties on proper sophisticated spatial planning systems which now have to undergo changes, those countries earlier behind the Iron Curtain have the need and the choice to react less restrictedly to the forthcoming supra-national spatial planning requirements based on earlier west-European experiences. This paper tries referring such experiences to draw lessons for adequate responds.
1.2. Some Historical Remarks
Spatial Planning experienced an earlier boom during the mid-sixties. There was planning euphoria, at least in Europe. Politicians, scientists and administrators trusted in planning as a tool to achieve a balanced development of economic activities to create equivalent living conditions in their respective national territories. The idea, how this could be achieved varied across Europe from country to country. The political and legal terminologies created in the various countries differed considerably.
Spatial planning was considered to be a more or less inner-governmental, national task. The translation of the various foreign terms into the English language gave the illusion that spatial planning was more or less the same political business in all countries. "Regional planning" or "comprehensive regional planning" was at that time the common translation of what the French called planification, the Dutch ruimtelijke ordening and the German Raumordnung.
This changed when politicians, in particular those belonging to regional movements in the centralised countries, became aware of the opportunity, that by applying the terminology of regional planning their political targets of greater regional self-determination and independence could be supported. Only the Committee of the Regions, mentioned in Art. 198 a-c of the EU Treaty still keeps the idea of regionalism in terms of European law alive.
The reaction was to avoid any terminological nexus with regionalism and to create the terminology of spatial planning which is today the generally accepted designation for what we are discussing at this conference. Changing the terminology made aware that spatial planning was not just a political task, but involved additional constitutional, legal, institutional and organisational aspects.
Though economists and planners considered spatial planning to be exclusively their business, the institutional aspects received rising importance and involved lawyers to transfer the political purposes into the constitutional and legal framework.
First steps towards extending spatial planning to a supra-national (European) scale were already made in the seventies, when an informal exchange of views based on some scientific research took place between the West European governmental agencies. It became obvious that there were different political approaches to spatial planning behind the English terminology. But the exchange of information did not result in a harmonisation of the planning practices.
The seventies brought another change of a global scope, when environmentalism entered the political stage. A new comprehensive public task was launched, at least in Germany, to compete with the comprehensive task of spatial planning. Spatial planning politicians and practitioners tried to make clear that environmental planning could be integrated into spatial planning, but environmental planning became something different. In many respects environmental planning covered the same or at least similar spatial subjects and of course the same territories. Environmentalism attracted major political attention, which now diminished the political importance of spatial planning and increased the importance of comprehensive and sectoral planning tasks related to environmental aspects.
Until today spatial planning, at least in Germany, politically suffers from the competition with environmental policy, though a recent increase in political appreciation of spatial planning is due to the awareness that spatial aspects cover specific issues and thus go beyond the environmental issue.
2. Antithetical Models of Spatial Planning
2.1. The French Aménagement du Territoire and the German Raumordnung as Protagonists
The specific content of spatial planning is not at all clear. Various countries, governments, supra-/international organisations, professionals, experts, political and administrative actors (ministries, departments, parliamentarians etc.) have quite a different understanding of what spatial planning means and, in addition to that, this differs with respect to the various territorial levels to be considered (e.g. sub-regional, regional, national, supranational, international, global) - a nightmare for a scientific discussion.
The trend in the eighties towards extending spatial planning activities to the European level affected the various kinds of sectoral planning more than the nationally orientated spatial planning systems. This applies in particular to networks and systems widening beyond the national borders, as for instance roads and highway systems, other communication systems, the coal and nuclear energy plant systems, the general and nuclear waste disposal systems etc. In extending the scope of their planning activities beyond the national borders they brought a European dimension to planning; in most cases they even disregarded EU borders by including non-EU member states, too, and sometimes expanded at a world-wide scale.
But in most cases the different national planning systems – legislation, administration and planning practice – scarcely responded adequately to the changing European and international context of the specific public and private planning activities.
A new era of "Europeanisation" began, when the EU extended its activities to political fields not explicitly mentioned as a specific task, jurisdiction or power transferred to the EU in the European Treaty. Environmental protection was the first political area of the widened EU interest; later the political field marked as regional policy was extended to a more complex policy now marked as "economic and social cohesion". These new comprehensive and complex areas of political activity gave rise to legal and political collisions both in relation to the jurisdiction remaining with the member states and in relation to the internal distribution of powers and jurisdiction within the EU, in particular between the Directorates General XI and XVI mainly involved.
The different approaches to spatial planning in the various member states, for which the French aménagement du territoire and the German Raumordnung appear to be two antithetical examples, were rather impeding than helpful in achieving common political initiatives for an EU spatial planning policy. Furthermore, the various EU member states had different political interests in participating in the various EU funding programmes within the various EU policies. It was obvious that a common European Spatial Development Policy would have considerable influence, if it became legally and politically effective.
The French and the German spatial planning approaches both have in common, that they are targeted to reduce existing spatial disparities in their countries.
Roughly spoken the French aménagement du territoire is designed to do this by direct programming of improvements in the technical, communicational, social and cultural infrastructure through central government investment activities.
The approach of the German Raumordnung is more indirect, as the Federal Government does not have jurisdiction of the planning and implementation of the regionally and locally needed infrastructure, because these are within the jurisdiction of the federal states (Länder). Even the spatial planning programmes and plans (Pläne und Programme der Landesplanung) are prepared by the Länder; the Federation has only legislative jurisdiction over a legal framework. The Supreme Federal Constitutional Court only acknowledges genuine federal spatial planning jurisdiction in exceptional cases, if a national planning task cannot effectively be carried out by the Länder, e.g. possibly with respect to European or global issues. Furthermore, the Federal Government is in charge of specific sectoral tasks, as for instance highway planning. Anyway, the pattern of powers, jurisdiction and funding within the federal German system is perhaps more complicated than it is in other countries. In Germany spatial planning has the function to co-ordinate activities at federal, federal state and regional levels with binding effects on federal, federal states and local authorities. The legal argument for the binding effect is that spatial planning is comprehensive and therefore has to precede sectoral planning activities.
Unlike regional policy or other sectoral policies, spatial planning (in Germany) as a co-ordinative function is not equipped with a budget to implement certain proper (investment) programmes or projects but has a pure co-ordination function. The co-ordinator shall not compete politically with programming, planning and implementation activities of the policies to be co-ordinated. That is why the difference between comprehensive and sectoral planning is so vital for the German system.
The final result of a co-ordination procedure is considered to be mutually
binding. Not the spatial plans and programmes as a whole are binding, but
only those designations in it which have the legal character of a goal.
Within the system of goals, the addressees which all participated in the
co-ordination procedure and had the opportunity to make representations,
keep a considerable flexibility of acting. Within the co-ordination procedure
which takes a long time nearly all conflicting interests are usually brought
to a balance. According to German experience the parties involved considered
themselves more bound by the mutually achieved compromise and the respective
agreement than by the legally binding effect attributed by the (German)
law to the spatial planning goals.
2.2. European Spatial Development Policy as a Synthesis ?
This is not the place to recollect the history of the European Spatial Development Policy.
The present discussion on the European Spatial Development Perspective mentioned before is focusing on a purely indicative character of the ESDP.
Because of the current structural vagueness of the ESDP, it is hard to say whether this is more a response to the French or to the German approach to spatial planning. Anyway, the EU cohesion policy approach shows many similarities with the French aménagement du territoire approach in so far as both policies aim to control major budgets for the implementation of their policy. On the other hand, the German approach appears better to apply a broader view of considering and evaluating the future overall development of the various regional entities within the whole territory to be considered, a broader political view, which is felt to be lacking at present.
The German initiative to establish a European Spatial Development Policy aimed at establishing an European Spatial Development Policy according to the German spatial planning model, based on a mutual agreement of the member states involved with only a rather incidental participation of the EU Commission in pursuing the principle of subsidiarity (Art. 3 a of the EU Treaty). This did not find much acceptance, neither with the other member states nor with the EU Commission. The Commission interprets the principle of subsidiarity in such a way, that jurisdictions of the member states only apply if no jurisdiction of the EU at all appears applicable. So at present, the ESDP does not indicate a political agreement on a model of spatial planning synthesising the major antithetical EU member state approaches. Rather it can be designated as a minimal solution.(see chapter 6).
3. Spatial Planning within a Constitutional and Legal Pattern of Powers and Jurisdictions
Any spatial planning co-ordination activity has to be considered against the background of the existing pattern of jurisdictions and powers involved. There exist various already organisational structures on national, supra- and international level, to which the comprehensive and sectoral tasks are assigned in complicated, various, overlapping ways, which are often reflected in the composed designations of the ministries (e.g. ministry for transport and building). A difference in terms of jurisdictions between supra- and international organisations might be that the supranational organisation received a transfer of jurisdictions from their member states, which in so far have lost their former sovereignty and the implied jurisdictions and powers.
Though the specific spatial planning criteria are not clear at all,
it is undisputed that spatial planning does not have a super planning function,
able to replace and to precede all other (sectoral) planning and administrative
functions. On the other hand, there are no co-ordination tasks without
an orientation to a substantial content contained in principles, goals,
targets etc. They must be explicitly known to both: the co-ordinator and
the addressees of the co-ordination to become effective.
3.1. Differentiation between Comprehensive and Sectoral Planning
The differentiation between comprehensive and sectoral planning appears to be a general issue of structuring decision procedures within governmental systems, not only in Germany. There exists a distribution of jurisdictions which is related to the classical ministerial structure, but in addition to this, there is the need to amalgamate the individual political aspects into complex political visions, which spatial planning does with respect to specific aspects, such as land and land development.
Co-ordination is needed both horizontally and vertically. Horizontally means that the department or sub-department in charge of the co-ordinative task has to achieve this within their own departmental or ministerial organisational structure. Ministries, departments, commissions, directorates, even their sub-units are in terms of co-ordination not at all to be considered as monoliths. Vertical co-ordination refers to their affiliated inferior regional or local branches and to other public bodies, which, though they might have constitutionally or by law a certain independence, (as local governments do in Germany) are considered as inferior levels with respect to the co-ordinating body.
The pattern of powers and jurisdiction in which spatial planning activities have to fit in varies considerably from country to country and so the resulting difficulties appear to be unique from country to country. They become even more complicated if the pattern extends to supranational organisations, which both internally and externally in relation to their member states have to cope with a difficult network of jurisdictions, powers and financial relationships, e.g. through funding programmes. So spatial planning becomes increasingly difficult, the higher the organisational level of co-ordination is to be considered.
Spatial planning does not only affect other land-use related planning activities but also the implementation of spatially relevant programmes and projects and the targeting of public funds towards certain areas. The control of the spatial allocation of public funds becomes increasingly important, if national, supranational, international or even global spatial co-ordination has to be effected. This means that at higher levels of spatial co-ordination spatial planning and the allocation of public funds become closely connected.
The German Federal Spatial Planning Act addresses this by explicitly saying that spatially relevant planning and implementation measures including public investments are the addressees of spatial planning. "Spatially relevant" is defined as "what consumes land or what has implications for spatial development".
As in an increasingly globalised world the classical departmental organisation and respective allocation of public tasks no longer enable governments to cope with the complex problems they are faced with, the differentiation between comprehensive spatial planning and sectoral activities has lost much of its function as a model to explain the pattern of powers and jurisdiction.
Thus many sectoral public tasks are today carried out in a comprehensive way, e.g. highway schemes take into account ecological and economic aspects. On the other hand, specific comprehensive tasks exist, such as spatial planning or environmental protection, and in addition to this new comprehensive political tasks are launched within the political process. It appears to be a general political strategy to change the pattern of existing departemental responsibilities and jurisdictions according to new political goals pursued by creating new complex fields of comprehensive policies. At EU level, the launching of the policy of economic and social cohesion appears to be an example. But national examples could be added and the newly combined designation of departments or ministries reflect the political approach. The renaissance of spatial planning could emerge as another example of a synthesising political approach.
In order to cope with the specific conflicting interests with respect to other powers, jurisdictions or public tasks involved which differ in more centralised, federal and within supranational systems (e.g. the EU) and relative to each-other, a spatial development policy is required which is innovative and at the same time allows a synthesis within the various governmental and planning systems involved.
3.2. Spatial Planning - Programme-, Plan-, Project-related ?
Theoretically only spatial planning related to the whole territory allows a coherent approach of a comprehensive spatial vision. Thus it would not be sufficient if it were only related to individual designated areas ( island planning) . Also, theoretically all spatially relevant public sectors should be included in the spatial planning consideration. The restriction on single aspects or respective programmes would not be compatible with the idea of comprehensive spatial planning. But in practice these ideals will not be realised and therefore plans are elaborated for restricted purposes and for parts of or selected areas etc.. This can collide with sectoral planning activities and rivalries sometimes appear as a consequence.
For instance, there is a discussion in Germany, whether a (federal state) general waste disposal concept should be prepared by spatial planning authorities or by the authority /ministry in charge of waste affairs, a matter, which in addition is subject to EU legislation; thus three levels of legislation (EU, national and federal state) are involved. Or it is disputed, how far the central-place concept and major development axes connecting the central places are binding for the Ministry of Transport and its planning of the (federal state wide) road and highway network (with indications for road construction priorities). At EU level the DG XVI report "Europe 2000+" addresses the European highway network structure in the framework of European spatial planning.
This raises the question whether the differentiation between comprehensive and sectoral planning still applies. The pattern of powers and jurisdiction rather needs a case-to-case consideration for political and legal assessment, for instance what task spatial planning should be in charge of, what share of responsibilities with other organisational units in charge of sectoral tasks appear appropriate with respect to what specific procedural and organisational measures should be taken.
The elaboration of (spatial planning) programmes and plans (this also applies to the urban planning level, which is excluded in this paper) is obviously expensive in terms of time and resources needed. Therefore, there is a rising tendency to replace time-consuming programming and planning by ad hoc assessment procedures. They have the additional advantage, that they are closer to the actual problems to be solved. For environmental purposes a legal requirement already exists for certain major categories of cases to execute environmental assessment procedures. According to German experiences the environmental assessment does not sufficiently address the specific spatial issues, so that there is a need for additional spatial assessments (Raumordnungsverfahren). But it must be taken into account that such spatial assessment procedures require the existence of spatial principles, goals and targets (in general contained in programmes, plans or other documents) as criteria for the assessment.
4. Reasons for Spatial Co-ordination
Spatial planning has always been ideologically connected with the rationality of politics. Because of the binding, in particular, self-binding effects, politicians and government executives must have good reasons for joining spatial co-ordination initiatives. But it can be also rational to refuse to join. Nevertheless, there can be political and legal reasons to enforce certain widely agreed spatial planning goals or targets against the resistance of a few and to provide legal tools to do this.
4.1. Potential Spatial Planning Issues
To provision of equivalent living conditions in the various parts of a territory (inner-regional, interregional, national, supranational) in line with the abolition of existing disparities is often considered to be the key goal of spatial planning. Recently the requirement of sustainable development appears to have replaced the aspect of equilisation. Depending on what spatial issues are politically assessed to be of major importance, the emphasis might range between spatial issues on urban congestion problems (within the EU this applies to the northern countries) or those related to certain development deficiencies, e.g. due to agrarian structures etc. (within the EU this applies to the Mediterranean countries), in many variations and combinations. The aspect of spatial equalisation might appear under various designations as cohesion policy, regional policy, general economic and financial policy. As political and scientific terminologies of the various foreign languages differ all translations are to a certain degree imprecise.
Anyway, at supranational level the EU Commission does not have explicit
jurisdictions over spatial planning. But various EU policy fields, in particular
social and economic cohesion, environmental protection, or agriculture
etc. and in particular their respective various funding programmes are
obviously related to the political issues of spatial planning. The allocation
of EU funds tends to undermine the distribution of powers and jurisdictions,
as it might initiate political activities disregarding the internal constitutional
and legal member-state patterns.
4.2. Motivations for Joining/Refusing to Join the Co-ordination Procedures
The aspect of equalisation will in general be widely agreed by both: those politically and administratively in charge of the whole respective territory and those representing (sub-) regional areas with respective deficits to be balanced. Those who expect to be the net payer for the balance will accept such contributions only to a certain degree, to which this appears politically acceptable for them, e.g. for reasons of rationality or solidarity. So spatial planning policy is obviously related to the present debate on the Agenda 2000.
A general aversion to spatial planning results from the mid- and long-term
(self-)binding effects which restrict the discretion and liberty to politically
react to changing political situations.
4.3. Data Collection for Spatial Analysis and Control of Spatial Efficiency
The comprehensiveness of spatial planning requires scientific approaches. The improvement of the quality of governmental action by rationality is a major argument for spatial planning. This can only be done based on the collection and analysis of data in various fields of spatial relevance. In particular prognostic techniques have to be applied. The scientific results sometimes have effects not intended by the researcher and are used for purposes for which they have not been elaborated. So both, the kind of data to be collected, the statistical techniques and the results of the analysis tend to be very disputed. According to German experiences, for instance, the establishment of land registers showing the existing infrastructure resources faced major resistance from those authorities who had to provide the information. Furthermore, the collection and analysis of data on public expenditure turned out to be very difficult to handle administratively.
Though the control of the efficiency of spatially relevant programmes, projects, measures or public investment is a major argument for spatial planning, evaluation efforts so far have only had limited political success.
The requirement of periodical reports on the results of spatial policy
(Raumordnungsberichte), which in Germany have to be prepared at
federal and federal states level, are scarcely usable as a control tool
but provide a comprehensive documentation of certain spatial planning policy
aspects of the respective government. The preparation of the reports is
of more value for internal governmental organisations than a valuable information
for a wider general public. Efforts to synchronise the tables of content
of the various (federal states) spatial planning reports in order to allow
a cross efficiency control, have failed so far.
4.4. Arguments for Spatial Planning at Supra/ International Level
The economic theory of federalism tries to determine the functions to be left to the federal level in federal states, such as Germany or the US. The theory appears to be similarly applicable to the functions which supranational organisations, such as the EU, should exercise. It gives an orientation on powers and jurisdictions that should and can be transferred by the member states without dismantling their legal status as states with independent legislative and executive powers.
Based on this theory, the following functions appear to be relevant as tasks to be transferred to the higher level respective to spatial planning:
It might be of interest, that in 30 years of spatial planning practice
in Germany, no case occurred in which federal spatial planning would have
been justified by an urgent reason, which underlinded that only the Federal
Government would be able to establish the programme or plan and that this
could not be left to the co-operation of the federal states. Recently a
federal spatial planning involvement was accepted by the federal states
enabling the federal government to spatially manage issues referring to
German reunification and to possible future European issues.
4.5. Diversity and Subsidiarity as Restricting Principles
Equalising spatial policies could reduce the regional diversity which is politically desirable. Thus maintaining the spatial and regional diversity is a major restriction for equalisation policies.
In an attempt to halt the crawling expansion of EU powers and jurisdictions intensified by the EU system of funding development, the principle of subsidiarity was formulated and incorporated in Art. 3a of the EU Treaty. This has the function to better protect the autonomy of the member states and their governmental structures, which in Germany applies in particular to the constitutional role of the federal states. They are not incorporated as member states in the EU and are only represented at EU level in the Council of the Regions, which allows only restricted political influence in spatial planning matters. The political appreciation of the Council of the Regions differs considerably in the various member states depending on their political view towards regionalisation.
5. Legal Effects of Spatial Co-ordination
Neither the trust that co-ordination will occur by itself, nor the optimism that co-ordination will be achieved by strong legal instruments and organisation appear to be the basis for a successful model of spatial planning. Law and practice of spatial planning have to keep within these extremes.
The German model of Raumordnung introduced in the mid-sixties is based on the idea of a legally binding co-ordination, but with a restricted intensity for various inner-constitutional reasons; the model changed considerably in the meantime. Political aspects of reducing the legal effects have gained more and more importance. But the existing legal framework still plays an important role in stabilising the administrational organisation. It is periodically adapted according to the political changes by amendments of the federal and federal states legislation.
At European level just the opposite approach has been adopted: Here a legal model is used which attributes only an indicative effect to the programming document (European Spatial Development Perspective). There have been various discussions in the past to amend the EU Treaty to provide a European Spatial Development Policy with a legal basis; but so far no agreement could be reached on how to achieve this; the political interests involved were too controversial.
The indicative character of the ESDP could lead to the wrong impression, that the political discussion is taking place beyond any legal determination. Even though the content is not formally legally binding, the ESDP is based on an agreement made by the EU members of the European Conference of Spatial Planning Ministers (CEMAT) and the EU Commission`s DG XVI, applying rules of procedures which were applied by CEMAT during the years of political activity and so implicitly agreed by the member states (so called "acquis"). The co-operation with DG XVI shows some formalisation in so far, as the EU Commission provides funds for a secretariat. But so far no clear decision has been taken to determine the legal status of spatial planning within the existing pattern of EU tasks and jurisdictions. Already the phrase "spatial development planning" allows a wide range of interpretation, as this terminology refers to no exact parallel terminology applied by the member states to designate a specific field of policy which they claim to be in charge of.
The terminology applied to the form in which spatial planning decisions are taken, e.g. programme, perspective, plan, scheme, spatial assessment etc. does not say much about the legal quality of the respective decision or document.
Spatial planning takes place in a sphere between legislation and executive power. German experiences show that it does not make much sense to chose high-ranking legal forms as a law or as a formal statutory instrument for planning purposes, hoping this would increase the co-ordinative effect of the document. On the contrary such efforts increase the resistance of authorities reluctant to be co-ordinated.
But of major importance are the procedures applied to the preparation and the adoption of spatial planning decisions, because the fairness of these procedures finally justifies that the parties involved have to keep within the resulting co-ordination.
It is disputed whether spatial planning needs public participation allowing citizens to be formally involved in the co-ordination procedures, as spatial planning is mainly a form of inter-governmental planning. In particular, the involvement of local government authorities in the procedures safeguard democratic participation. Public participation in high-level spatial planning discussions might be relevant to improve the general political relevance, but appears not to be indispensable in terms of democracy. The procedural details should be left to the respective country and should not be determined generally. To let all local authorities, which within the model of representative democracy represent the interests of their citizens, participate in the planning procedure becomes already difficult when spatial plans are prepared at federal-state level. The participation in the preparation of national and supranational spatial planning documents will produce even more procedural difficulties.
Procedural and organisational regulations tend to have supplementary functions in this context: The participation of single authorities can be less intensive, if they are represented in the council of the public body which is in charge of the preparation of the plan.
As the effects of spatial planning might be long-term and go far beyond the election period, for which the government its mandate, spatial planning decisions with guideline functions might require the involvement of the parliament and cannot be left entirely to the discretion of government executives. Recently the legal question was raised whether the involvement of supranational and international organisations in spatial planning should require that basic democratic principles are observed by these institutions, as for instance the separation of parliamentary, executive and judicial powers, the application of the rule of law or the parliamentary legitimacy of legislative acts.
Self-binding effects deriving from spatial co-ordination represent strong obstacles, which keep independent states or supra/international organisations from joining political or legally binding co-ordination procedures. Spatial planning can only cope with this problem by reducing its involvement to the least possible degree of impact on the autonomy of the respective departments/ ministries/ directorates/ sub-units.
6. The Role of Law with Respect to Spatial Planning
6.1. Pattern of Powers and Jurisdiction as a Legal Framework for Co-ordination
Like other co-ordinative tasks, spatial planning needs to be adapted to the pattern of powers and jurisdictions involved. In general this has to be done explicitly by amending the law, sometimes agreements or treaties will form a sufficient base. Changes in so far need political compromises to modify the existing patterns.
A review of the changes in spatial planning law and practice in neighbouring European countries during the last 10 or 15 years might be summarised as follows: the changes were more determined by inner-state considerations than by supranational, international or even global impacts. Even many European harmonisation effects have been caused by rather home-orientated effects.
For instance the CEMAT discussion on the European regional development policy appears to be determined by the efforts of member state protagonists to keep their inner-state spatial planning system effective and to try to expand this to the higher European level, rather than vice versa European trends have genuinely effected changes in the national law and practice of spatial planning. The discussion on the ESDP is characterised by efforts to reach a minimal short-term compromise leaving open whether the agreement on this compromise is the preliminary end of a political initiative launched and promoted under various EU presidencies, or whether this is only a temporary first step in developing spatial planning towards a far-reaching public task of a European dimension.
The control of specific land uses and land-use planning loses its importance at supra- or international levels of spatial planning. The focus is here more on the distribution and allocation of financial resources of spatial relevance. An exception might be in so far to keep certain corridors free from incompatible land uses and to safeguard certain cross- and connection-points, e.g. for the communication networks of European scale; but even in these cases detailed sectoral planning will remain the responsibility of the respective territorial authorities.
There appears to be a tendency to transfer planning responsibilities for major projects of national or supra-national interest -and with it the respective jurisdiction- to the highest level possible in order to avoid adminstrative reluctance and delays due to judicial control procedures. Thus the EU Commission under certain conditions claims jurisdiction for fauna, flora- and habitat protection schemes.
6.2. Impact of Environmental Law on Spatial Planning Legislation
There have been various impacts from the European law on the member states, e.g. the German (spatial) planning legislation. These impacts were not effected by a European spatial planning policy but by various EU environmental policy and legislation activities which require that member states transfer respective EU directives into national law. In particular the EU directive on the conservation of fauna, flora and habitats and the directive on environmental impact assessment required difficult national codification activities. Another EU directive on the environmental impacts of plans is still under EU consideration, but will presumably have major impacts on the legal planning system, too. As the member states are under the threat of judicial procedures before the European Court of Justice, sometimes ending in high fines for violating the EU Treaty, they try to avoid these consequences by explicitly referring to the specific articles or wording of the European law in the texts of their legislation thus avoiding a proper systematic integration into national law, which is always under the threat to be considered deficient and potentially violating the higher-ranking European law by European Courts. In terms of EU jurisdiction spatial planning is related to aspects of environmental protection, not to social and economic cohesion. The borderline between both EU policy fields is vague and though the legal framework for them differs considerably, there are no political indications visible that the Commission intends the to make the internal borderlines clearer. This has, of course, implications for the ESDP discussion as well.
6.3. The Role of the Lawyer : "Notary", not Initiator of Changes
Within the political process of developing spatial planning further as a public task, the role of the lawyer is less to take the initiative to create a dogmatic basis for the definition of respective goals, procedures or organisational structures. German experiences show that planning and administrative practices have to be developed first based on political compromises. In a second step lawyers get involved to transform this into legal forms. So the role of the lawyer can be described rather as a public notary.
7. Convergence of Spatial Planning Systems?
Considering planning law and administration at an European scale, there is a general observation that the various national planning legislations tend to converge within mid- or long-term periods. The convergence is less due to harmonising effects of European Legislation but to a kind of autonomous harmonisation, which applies to member states and non-EU member states in the same way and which might be caused by the effects of market forces, technology and information. Though spatial planning is much stronger related than urban and sectoral planning to what can be characterised as the political, constitutional, legal and administrative culture of the various states, the theory of convergence appears to apply to spatial planning as well. A major problem remains the language problem, as the mutual understanding can not be resolved only a third languages basis (e.g. English); so bi-lingual glossaries, as edited by the German Academy for Spatial planning in particular for the east-European and Baltic Sea neighbouring countries are needed.
A first step on the way of convergence in terms of the governmental organisation of spatial planning appears to be that spatial planning powers and jurisdictions tend to be connected within the ministerial structure with major sectoral taks as in particular with transport and communication or regional development, resulting in long, difficult to remember designations of these complexly tasked national ministries.
* This Paper goes back to a contribution to "Europäisches Raumentwicklungskonzept (EUREK), ARL-Hannover, Akademie für Raumforschung und Landesplanung 2001, Forschungs- und Sitzungsberichte, Band 216, 2001 : David, Carl-Heinz, Zur Aufgaben- und Organisationsstruktur einer europäischen Raumentwicklungspolitik, S. 4- 13.
CEMAT (Conférence européenne des Ministres responsables de l'aménagement du territoire) the committee in charge of the preparation of the formal and informal meetings of CEMAT ist the Committee on Spatial Development (CSD- Comité de développement spatial). CEMAT is not an organisation of the European Union (EU), but derives its international legal status from the Council of Europe. In the mid-eighties CEMAT passed the European Regional/Spatial Planning Charta, which had major importance for initiating European cross-border spatial planning activities
European Spatial Development Perspective, First official draft, adopted at the informal meeting of the Ministers responsible for Spatial Planning of the EU at Potsdam, Mai 1999.
Principles for a European Spatial Development Policy, Results of the meeting of the informal meeting of CEMAT, Leipzig, 21-22 September 1994, Bundesministerium für Raumordnung, Bauwesen und Städtebau, Bonn 1995. Most EU- related documents are available either by the Office for Official Publications, Luxemburg (on charge) or under http://europa.eu.int or http:// inforegio.cec.eu.int.,
OECD Conference Towards a new Role of Spatial Planning, Paris, 1999
The recent amendment of the Federal Spatial Building Act ist dated the 08.08.1997, BGBl. I., p. 2081-2102.
see www.arl-net.de/ns/index-html : look for "Handbuch"or "Planungsbegriffe"