New statutory provision on when the municipality can grant exemptions from requirements for measures on existing buildings 15.03.2023 | Real Estate
The main rule is that all buildings - both new and old - must satisfy the requirements and provisions of the Planning and Building Act. Anyone who wants to carry out measures that do not meet the requirements must apply for a dispensation. Naturally enough, it will often be more difficult to meet the requirements for measures on existing buildings than new builds. However, it is an environmental advantage that existing buildings are looked after and reused, rather than these being demolished or left unused. From 1 January 2023, a new exemption provision applies for measures in existing buildings, and here we explain the background and intention of the provision.
1 Background
The starting point is that buildings must meet requirements laid down in the Planning and Building Act, and regulations issued pursuant to the Act. If you want to carry out a measure that does not meet the requirements set for the building, this requires a dispensation.
These starting points are the same for new buildings and for measures carried out in existing buildings. However, the municipality has greater room for maneuver to grant exemptions from requirements for existing buildings, without a decision on dispensation having to be made. The reasons for this are complex.
2 The rationale for the exemption provision
Existing buildings are very different, for example in terms of age, condition, which requirements applied at the time of construction, and what purpose the building should serve. Such differences, and the fact that the technical requirements are largely designed with new buildings in mind, mean that it can be difficult to satisfy current building requirements when work is to be carried out on existing buildings. This can result in building owners refraining from work that raises the building's technical and safety standards.
Continued use may depend on measures being taken in the building. However, certain technical requirements can make it difficult to implement the necessary measures, either because it is financially costly or because it is technically difficult to meet the current requirements. In this way, the exception provision acts as a safety valve against unreasonable and unfortunate results. In order to ensure that buildings are in use, and do not fall into disrepair or stand empty, a measure can be to grant exemptions from requirements. This is not only in the interest of the initiative holder, but also serves society. The fact that exemptions from certain technical requirements are granted does not mean that the municipality accepts that safety in the building is weakened. Rather, exemptions from requirements could lead to increased security in the building.
3 Intentions behind the change in the law
From 1 January 2023, there is a new exemption provision that applies to measures in existing buildings. One intention behind the change in the law was to expand the scope for making changes to one's own property and to stimulate the upgrading of older buildings. This was to be achieved through a simplification of the regulations.
Another intention behind the change in the law was to clarify the framework conditions in the law. During the work on the amendment to the law, it was pointed out that the regulations in the area were complicated and unclear, and characterized by heavy language and unclear concepts. The municipalities also interpreted the regulations differently. The amendment to the law aims to provide clearer and simplified regulations for when exceptions can be granted.
The purpose of the amendment to the law is therefore to provide clearer guidelines for what is needed to exempt existing buildings from technical requirements and thus contribute to more predictability. The reason for the change in law is that it will be easier to apply for exemptions from technical requirements to ensure more sustainable and efficient reuse of buildings. Furthermore, the change will make it easier for the municipality to process such applications.
4 New legal requirements from 1 January 2023
The new exception provision now follows from Section 31-4 of the Planning and Building Act, which states:
"In the case of measures pursuant to § 20-1 on existing buildings, the municipality may grant full or partial exemptions from technical requirements, if it is considered justifiable from the point of view of safety, health and the environment. In the assessment, the municipality must emphasize the following:
a. the building's age, formal protection status, type, purpose, location, duration of the measure and current technical condition
b. conditions that can reduce negative consequences by granting exceptions
c. benefits that are achieved with the measure."
The municipality can grant exemptions if the measure is considered to be sound for reasons of health, safety and the environment. The municipalities must therefore make an overall assessment of whether it is justifiable to grant full or partial exemptions from the requirements, and in their assessment they must place emphasis on the points listed in letters a to c above. The preparatory work shows that it is crucial that the building be improved, and in particular an improvement in the level of safety. It will therefore be key that the measure does not lead to a reduction in the existing security level.
The most important thing in the assessment therefore appears to be how and to what extent the measure will affect the level of safety, at the same time as the building is improved or the measure entails other benefits. Naturally, it therefore takes less to grant exceptions to requirements that do not concern the level of safety, and conversely more if the measure affects safety in a negative direction. If the security level is reduced, it will probably be difficult to assess the measure as justifiable.
5 What does the change in law entail?
The amendment to the law both changes and clarifies what the municipality must emphasize when it assesses whether it is justifiable to grant an exception.
Previously, exemptions from technical requirements depended on the measure being "necessary" to ensure "appropriate use", and that adaptation to the requirements would entail "disproportionate costs". These conditions offered difficult discretionary assessments. If one of the conditions was not met, the applicant had to request for a dispensation according to the strict dispensation conditions in the law. This meant that measures that did not meet the provision's wording were often rejected. As the conditions have not been continued, this will facilitate the proceedings for the municipality, in addition to giving them greater flexibility in the assessment. For policy holders, this could give greater scope for exceptions. It is reasonable to assume that the threshold for obtaining exemptions from technical requirements has been somewhat lowered as a result of the change in the law, and that building owners are thus given somewhat more flexibility for which works can be permitted to be carried out on existing buildings.
The change also makes it easier to apply for exemptions that can ensure more sustainable and efficient reuse of buildings. The change in the law can therefore give building owners new incentives to upgrade the building to a higher standard, which will result in better and safer buildings. It is an environmental advantage that existing buildings are looked after and reused, rather than these being demolished or left unused.
The listing of relevant points also provides greater predictability compared to previously. It is assumed that this provides a basis for better assessments of whether exceptions should be granted and that the proceedings for the municipality will be both simpler and faster. The clarification of what the municipality must emphasize in the assessment also contributes to increased predictability for the initiative holder. It is assumed that a clearer rule will contribute to more building owners applying to carry out the necessary measures on their buildings, rather than letting them fall into disrepair or remain untouched. A clearer rule will also help ensure that the municipalities' practice in the area is as similar as possible.
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