The Environmental Code

statement from the Administrative Court of Appeal. This is not common procedure, but it happened in the case of an appealed permit process, Tararp 3:5, in Karlshamn, Blekinge.

3.3.1 The precautionary principle

Of special interest in international environmental care is the precautionary principle, the idea that in the absence of a scientific consensus that harm would not follow from an action or policy, the burden of proof falls on those who would initiate taking this action. The precautionary principle can in Swedish environmental law be seen in the provisions for someone performing activities applicable to the Environmental Code, when applying for a permit, 2 chapter, section 3, part 2:

“Such precautions shall be taken as soon as there is cause to assume that an activity or measure may cause damage or detriment to human health or the environment.”³⁷ This can be recognized in the Radiation Protection Act (1988:220):

”The purpose of this Act is to protect people, animals and the environment against the harmful effects of radiation” (section 1).

The Radiation Protection Act applies to both ionizing and non-ionizing radiation. It is meant to protect both human health as well as the environment as such, which means, and is clarified in section 6, point 1, that anyone who conducts activities involving radiation shall take the measures and precautions required to prevent injury to people and animals and damage to the environment.

The precautionary principle, as expressed in the Environmental Code, aims both at the one responsible for the activities, which in the case of 3G masts would be the operators, and the supervising authority. The Swedish Radiation Protection Authority is both to announce necessary regulations, and in its supervision see to that the regulations are respected. Every municipality exercises control within its area over the environmental and health protection, including base stations for mobile telephony. This municipal supervision is actualized in the case regarding 3G masts in Landskrona, presented in the Environmental Court of Appeal case below. The precautionary principle expresses a decision making strategy that borders both science and politics, both calculating rationality and deliberative rationality. With it follows a shift of who has to prove what is hazardous, meaning that the active part, the entrepreneur has to prove (or corroborate) that the activity is not hazardous.

3.3.2 Environmentally hazardous activities

With the legal term “environmentally hazardous activity” is meant every use of land, building and construction that brings, or can bring, discharge of land or water, pollution of land, air or water, or cause detriment to the surroundings in another way (Ebbeson 2003, p 125). The latter is specified in chapter 9, section 1, of the Environmental Code:

‘Environmentally hazardous activities’ shall mean:

4. any use of land, buildings or structures that may cause a detriment to the … surroundings due to noise, vibration, light, ionizing or non-ionizing radiation or similar impact.

37 From official translation in Ds 2000:61.

With ”similar impact” means such detriment ”that is to be comparable with the enumerated and that may be decided through court ruling”. As examples on “similar impact” are insects, air born bacteria and virus, other sounds than noise, sparkles, or mental effect mentioned (prop 1997/98:45, part 2, p 108).

The government has through the Ordinance (1998:899) on Environmentally Hazardous Activities and The Protection of Public Health stated what activities that need a permit, where to apply for it, and what activity that has to be reported. The responsibility to arrange necessary protective measures is the one that operates the activity. The ordinance states that activities under more than 100 categories need a permit or to be reported in, divided into three levels, where the first require a permit from an environmental court (A-activities), the second require a permit from the County Administration (B-activities), and the third, regarding even smaller activities do not require a permit but must be reported to the local municipal Environmental Committee (C-activities).

3.3.3 ”12:6-consultations“ under the Environmental Code

When it comes to the regional level, the level of the County Administration, the regulations in the Environmental Code regarding a consultation procedure is applicable to some 3G masts.

“If an activity or measure for which a permit or notification is not required pursuant to other provisions of this Code is liable to have a significant impact on the natural environment, notice of consultation shall be made to the supervisory authority in accordance with the provisions of chapter 26 or with rules issued in pursuance thereof” (chapter 12, section 6 of the Environmental Code. Ministry of the Environment translation in Ds 2000:61)

The key wording for the consultations regards activities which have a “significant impact on the natural environment“. These activities are to be reported to the County Administration by the one responsible for the activity, which means that the responsible part has to make a judgement whether the activity has this impact or not. The information basis for this judgement can be highly insecure, and in the initial stages of the 3G roll out it is likely that neither the PTA or the operators was aware of this responsibility (Emmelin & Söderblom 2002, p 27 f.).

The consultation concerns nature conservation, heritage, landscape aesthetics and amenity values. The activity may start at the earliest six weeks after the reporting has been done if not the County Administration admits something else. The County Administration can prescribe the responsible of the activity to take precautions or even forbid the activity. This duty to report has a wide application, and the focus lies on the impact on the natural environment, in its visible or aesthetic sense. The activity can be prohibited by the County Administration “in order to protect the natural Environment” (12:6, section 4).

The purpose of this duty to report for consultation is according to the Environmental Code investigation that this creates a possibility to see what activities that are performed in sensitive areas, and to control that activities hazardous to the natural environment are prohibited. This

can steer the one exercising the activity away from sensitive areas, to areas where there is no duty to report (prop 1997/98:45, p 304).

In the general advices from the Environmental Protection Agency regarding the 12:6 consultations, decided 21 June 2001, the terms in the 12:6 of the Environmental Code are interpreted. Regarding the “natural environment” that Agency concludes that:

“The term natural environment ought to be interpreted in a wide sense, and include what usually is called the nature, such as…. The term should also include the landscape and the cultural landscape. It should include all nature, not only valuable nature or untouched nature, and hence include also the natural environment in the area close to population centres” (NFS 2001:15, author’s translation).

The term should according to the Agency normally not include built environments. This means that there are legal provisions with some room for interpretation, and the practice of the County Administrations is likely to differ to some extent. Note that the responsibility to report the site lies on the one responsible for the activity, meaning the operators constructing masts.

The advices from the Environmental Protection Agency has specified that free-standing masts should be reported for 12:6 consultation, because they are likely to have a “significant impact”. This is even if there is a process for building permit. This means that even if the mast gets a building permit, the site can be prohibited to protect the natural environment. The processes are parallel. This lack of coordination has been criticized for being a bad legislative coordination, but also a manifestation of “competition between professions as well as governmental authorities, and is an expression of a distrust towards municipal permit processes that exists within the environmental sector” (Emmelin & Söderblom 2002, p 28).

This addresses the question of the relation between the Planning and Building Act and the Environmental Code. Most masts need a building permit. Of these masts, when they are to be put up outside population centres, they are often likely to have a significant impact on the natural environment and hence subject for 12:6 consultation. This opens up for that when the site is tried in relation to the aspects of the Environmental Code, the purpose of the Code and for instance the general rules for consideration in chapter 2 are of relevance, especially the principle of localisation in section 4. When the same site is tried according to the Planning and Building Act the status it acquires when receiving a mast building permit can be questioned in a parallel process, by a different authority, referring to a different legislation, leading to a “permit that is not a permit”.

A decision from the County Administration that prohibits the construction of a 3G mast in an area can be appealed to the Environmental Court by the operator in question, or the consultant that handles the case for the operator. If an operator seeks to construct a mast on another’s property, a County Administrative decision has no legal implications when it comes to building permit or utility easement. This means that even if the County Administration sees no hindrance for a mast from a natural environment point of view, it does not necessarily mean that the mast is permitted by the Plan and Building Act (this is another, municipal, trial). It is accepted in legal practice that those who has some kind of special right to the property, for instance being the owner, that the consultation decision concerns also has a right to be heard before the decision, see case in the Environmental Court of Vänersborg (M 5148-04, 22 April 2005), where the decision was appealed because the County Administration had not communicated the decision to the property owner. This leads to that the case was

redirected to the County Administration. The right to appeal a decision based on the 12:6 consultation likely requires that the person can be affected by the decision in the sense of being property owner, or with some special right to the land.

In a case from the Environmental Court of Appeal (Case M 7839-03, 8 Feb 2005) a person appealed the Environmental Court decision to allow a 3G mast in accordance with chapter 12, section 6 of the Environmental Code. The person had no property that was affected by the decision, and therefore not found to have the right to appeal the decision with references to public interest.

However, the practice of the 12:6 consultations when it comes to 3G masts is investigated below, in the implementation stages. How often these consultations have been made, and what the reported material has been including can to some extent be found in the Blekinge data. This “law application” is therefore interesting to get back to, mainly because it is one form of participation that is allowed in the 3G implementation. Who are included, and what questions that have been included is returned to below, in the implementation stages, as well as in the final analysis of the 3G case in the two finishing chapters of the thesis.