1. Introduction: Symbolic Salamanders
Triturus cristatus, or the northern crested newt, is an aquatic amphibian, often just referred to as a salamander. This little animal is indigenous in large parts of Northern Europe, but its habitats are diminishing. Thus, the European Habitat Directive name the
cristatus as one of the species for which designated areas of conservation should be established [
1]. In Norway, amphibious creatures are rather rare; so rare, in fact, that the northern crested newt is considered vulnerable and placed on the national red list [
2]. Consequently, all plans for development must consider whether habitats of the newt will be affected. (Disturbing a population of a red-listed species must be considered a “substantial effect”, which triggers the impact assessment requirement. See the section about information requirements below.)
The small, lizard-like creature has become a key example for describing the efforts of conservation authorities in Norway [
3]. When a planning process is perceived to be too detailed, people will, for instance, say that the project has been assessed “down to the last salamander” [
4]. The reason why the newt has been chosen as a symbol is not obvious; there are certainly many other plants and animals that also require special conservative measures. It may be due to factors, such as the newt being seen as relatively exotic, unimportant or, simply, not cute.
In this article, I discuss the prospects of nature conservation in a comprehensive planning system, specifically related to the prevention of harm from natural hazards. Conservation is sometimes seen as a burden compared to other interests, hence the tainted reputation of the salamanders. Especially when competing with pressing welfare or business needs, conservation interests seem more likely to lose. Faster results are more tangible for a majority of the population, which, in turn, affects decision-makers. In other words: being very pro-conservation may not be the best strategy to get reelected.
Thus, a general concern is whether current legal tools can safeguard environmental interests in a satisfactory manner. Supposedly, conservation efforts are least popular when the issue in question is relatively unknown and/or has little public interest. On the other hand, the mitigation of hazards that threaten human life, health or valuables usually has strong support. Sometimes, public awareness and interest are even so strong that it leads to measures in excess of what is strictly needed to avoid the risk [
5] (p. 58).
Through the following pages, I analyze the relationship between public safety and environmental conservation in land use planning rules. Is the question posed in the title—safety or salamanders—really a dichotomy?
First, I discuss the potential physical outcome of the two interests and exemplify how they can be met with overlapping or similar measures. Then, I describe and compare how the two considerations are treated in Norwegian planning law. Aiming to keep the discussion focused, I concentrate on two aspects, namely how the interests affect information requirements in the process and which content they dictate in the final plan.
Based on the analysis of the rules, I discuss the benefits of combining environmental and safety interests. Ideally, such combinations better promote the primary objective of sustainability, as well as making the plans more robust to uncertainty.
Furthermore, common measures can increase the overall public support and, thereby, the acceptance of the plans. Finally, I pose that measures meeting both safety and conservation interests will contribute to more than one aspect of sustainability and should therefore be favored in planning and have stronger legal support.
As part of the conclusion, I shortly reflect on the transferability of the results: though the article is based on Norwegian law, the arguments should have general application. However, first, I turn to the potential interplay between safety and salamanders.
2. The Interplay between Protection and Conservation
The central topic of this article (and the special issue) is environmental law and sustainability. A question presented above was whether comprehensive planning safeguards environmental interests properly, which, in turn, affects the sustainability of the result. While the question can be read as an empirical one, it is not my purpose to answer. My aim is to discuss whether the content of current Norwegian planning rules facilitate sustainability, concentrating on environmental and safety aspects.
This chapter contains some examples on the interplay between safety and conservation in comprehensive land use planning. The cases are meant as illustrations, not a comprehensive list of possible options. The point is to shed light on how interests from environmental law can be promoted together with safety concerns and, thus, further the overarching goal of sustainability.
A common opinion seems to be that proximity to water adds value to properties. Real estate listings often mention “ocean view”, or specific distance to the water. (See
inter alia real estate listings on [
6] found with search terms like “sjøutsikt” (ocean view) or “meter fra sjøen” (meters from the ocean)). Seafronts and river banks are therefore popular areas for development. However, natural hazards often relate to (or directly include) water, and closeness to water can therefore influence the risk of harm. Furthermore, boundary areas between water and dry land are often rich ecosystems. Property development may threaten the habitats of plants and animals. Other disturbances, such as sea level rise or floods, can also make the habitats unsuitable.
Moving development back from the waterfront may at the same time avoid societal risk and protect the ecosystems. One could probably mitigate most of the flood risk by setting conditions for development, like forbidding cellars, demanding building materials that can withstand water,
etc. However, such an approach would not be a guarantee against damage (see also the sub-chapter about uncertainty). In fact, proximity to the sea is one of the very few specific requirements in the Norwegian Planning and Building Act regarding the content of plans: as a general rule, no development should be allowed to be closer than 100 meters from the sea [
7] (Section 1-8). Furthermore, the act mandates that special consideration is given to elements of public interest, including the natural environment.
Another example where safety and conservation interests overlap is wetlands near existing developments. A choice not to develop such areas can serve as a safety measure by limiting the impacts of floods, as well as to protect the environmental interests there. A variation of the flood-prone wetlands are hillsides with the possibility of avalanches or earth slides. Naturally occurring plants and vegetation will act as a safety measure, keeping soil and snow in place. Therefore, a decision to develop the hillside (or take up forestry there) will increase the risk of damage, as well as disturb the ecosystems.
Even if the conservation of the original environment for some reason is impossible, environmental and societal safety concerns can still be successfully combined. In a development area prone to urban floods, the planning authorities may set conditions about water handling, such as storm ponds, conservation of small streams and similar. Such measures will reduce the risk of damage by retaining and leading away water and, at the same time, provide habitats for native species within the development area.
One of the creatures that can benefit from water bodies being kept open is indeed the northern crested newt. Draining and filling of ponds in connection with agriculture, forestry or development are the main threats to the salamander populations in Norway. In one case, the Norwegian public road administration actually built several “salamander hotels” when building a new road through a habitat [
3]. The results were that the public got a safer road and that the population of salamanders was conserved.
3. Legal Framework
3.1. Overview of Land Use Planning Law in Norway
Planning in Norway is regulated by the Planning and Building Act of 2008 (PBA) [
7]. The planning regime is comprehensive and includes various societal factors, in addition to land use. According to the first section of the act, planning shall coordinate the different levels of government and be a tool for decisions regarding the use and conservation of resources. The main purpose of the PBA is to “promote sustainable development in the best interests of individuals, society and future generations” [
7] (Section 1-1). A later section in the act contains more detailed goals for the planning, ranging from public health, via Sami culture and commerce, crime prevention, climate emissions, to the safe development of buildings and infrastructure; and environmental conservation [
7] (Section 3-1).
Interestingly, these various aims and interests are not formally ranked, apart from sustainable development being highlighted as the main, overarching purpose. Therefore, the balancing of considerations is deferred to be decided by the authorities in each case. While this system allows for necessary flexibility, it also entails a considerable risk of bit by bit exhaustion of resources or development in previously untouched areas (regarding this “sum consequence” problem in undeveloped areas in Norway, see Winge [
8]).
Norway consists of more than four hundred municipalities, which differ much in size, population density, economy and commerce, natural resources, physical geography, etc. Most of the physical and societal planning in Norway is done within the municipalities, by the local authorities. This distributed planning regime has broad support, but the huge variation between municipalities is a challenge for national legislation. Thus, planning law has been a debated political issue in Norway for more than fifty years, and several models have been tried. With the central act being less than ten years old, it is safe to say that Norwegian planning law is still evolving.
3.2. History and Common Principles of Safety and Conservation Considerations
Physical safety—the protection of human life, health and valuables—was one of the very first considerations behind land use regulations in Norway [
9]. Early building codes demanded the use of bricks or concrete in the city centers to prevent fires from spreading. Fire prevention and risk reduction were also a motivation for street layouts, by creating barriers and providing accessibility for fire wagons. Since these early examples, other aspects of societal safety have been included in the planning, such as protection from natural hazards and traffic safety.
Today, the safety factor is one of many considerations in a comprehensive planning regime. There are specific rules about safety, both in the planning part and the building part of the act. However, I will mostly refer to the planning part, because this is where the deliberation about development vs. conservation is made. When the building rules become relevant, a decision to develop has already been taken.
Compared to societal safety, conservation has a relatively short history as a planning consideration. Earlier, spatial plans were only adopted for cities and, gradually, other densely populated areas. Conservation of (pristine) nature was not considered as a planning task. Environmental issues could, of course, be a part of these early plans, but more along the lines of prohibiting landfills within the city or demanding a certain height of smokestacks to avoid bad air quality. Thus, the environmental content was mainly concerned with human well-being.
During the later decades, conservation of nature in and of itself has gained popularity and support. Along with the development in public opinion, legal instruments have been suggested and implemented to safeguard nature. A recent addition to the growing body of literature is [
10]. The primary legal foundation for conservation of nature in Norway is the Biodiversity Act of 2009, which replaced and extended the former Conservation Act of 1977 [
11]. The central aim of the Biodiversity act is to protect the diversity of nature through sustainable use and conservation [
11] (Section 1). Conservation decisions according to the Biodiversity Act (establishment of national parks,
etc.) are made by the national government through formal regulations (
forskrift). These decisions must be respected by municipalities and other actors.
A dilemma with having separate legal tools in a separate conservation act is that it can lead to the protection of the environment being seen as a separate matter, to be dealt with on its own. Local land use planning authorities can be tempted to disregard conservation issues, because there are other authorities with that as a specific task. This is supposedly (at least part of) the reason why the Biodiversity Act also includes general principles for all public authorities dealing with biodiversity [
11] (Sections 8–12). A full account of the general principles falls outside the limits of this article, but I will briefly mention the central ones.
Some principles are known from national and international codified and customary environmental law, like the polluter pays principle and the precautionary principle. For the purpose of this article, comparing safety and conservation in planning, I think the most interesting principle is the knowledge requirement: all public decision with effects for biodiversity must, as far as reasonable, build on scientific knowledge [
11] (Section 8). The central aspect of what should be considered reasonable is the risk for damage to biodiversity.
Such an explicit requirement (or limit) for scientific knowledge lacks in the PBA. One may argue that there exists a general, customary rule with the same content. For instance, a decision that might put human lives at risk would probably demand a stricter assessment than one without such a risk. However, it is not necessary to conclude on the existence of a general principle here. Either way, decisions relevant for this discussion will fall within the scope of the codified principle. According to the Biodiversity Act, a decision that can threaten an endangered species will require more research than one without such an effect. In the next section, I survey information requirements in the PBA.
4. Information Requirements: RVAs and EIAs
PBA’s rules about societal safety can be divided in two categories: those relating to the assessment of the factual background for plans; and rules regarding actual safety measures in the plans. Most important in the first category is PBA [
7] (Section 4-3), which demands that all plans for development should undergo a “risk and vulnerability assessment” (RVA). Such assessments must show all risks and vulnerabilities for the planned project, as well as new risks that could be created by approving the plan. Much of the details regarding these assessments (relevant hazards and damage, the method,
etc.) are left up to municipal discretion [
12].
The wording of the act states that risk and vulnerability assessments shall be made for the “planning area”. Initially, it may seem as though this includes the whole area covered by the plan (i.e., the whole municipality for municipal master plans). However, the demand must be interpreted in context: for many plans, a comprehensive RVA would mean lots of excess work. Thus, the correct understanding of the rule must be that the assessment must encompass as much as needed to fulfill the relevant obligations (ensure proper protection, etc.). One particularly interesting variant is how much information the rule requires when an area is not suited for development, but the municipality still wants to apply safety measures. I return to this specific question below.
In contrast, the building part of the PBA contains more specific rules about safety for new developments. The prevention of harm from natural hazards is also a topic in the regulation about technical aspects of buildings [
13]. For new building projects to be approved, the planned building site must meet specific limits for flooding and land slide risks. Thus, it would be meaningless to zone an area for development if it is impossible to meet these safety limits. In principle, though, the regulation does not apply to the planning process.
The main reason for this discrepancy in rules for planning and building permits is that specific limits require detailed knowledge. Obviously, a municipality cannot designate an area for building purposes if it is known to be flood-prone (or otherwise at risk from the elements). On the other hand, the municipalities have no legal obligation in the planning process to investigate all possible building sites in high enough detail to determine whether the specific limits in the regulation can be met. Such a demand would be a huge burden on the municipalities and lead to much unnecessary planning efforts.
The PBA also has several rules regarding conservation interests. Obviously, ecology and the natural environment are important aspects of the main purpose—sustainable development. Furthermore, the expanded goals and aims for planning include a duty to “safeguard land resources, landscape qualities and the conservation of valuable landscapes and cultural environments” [
7] (Section 3-1). However, as with safety, these general goals give little specific guidance. Neither does the PBA have clear rules about what should be considered “resources” or “valuable” landscapes or environments. To some extent, the content of these expressions is left to the discretion of planning authorities.
Perhaps the most important rule regarding conservation of nature in the planning process is the requirement for an environmental impact assessment (EIA). All major plans (
i.e., regional plans, municipal master plans and zoning plans that might have significant effects on the environment or society) must describe the plan’s effect on society and the environment [
7] (Section 4-2).
The specific content of impact assessments will vary according to the planning level, projects in the plan and affected ecosystems, but the main requirements are outlined in a separate regulation. Like the principle in the Biodiversity Act, the regulation also indicates the required level of knowledge: impact assessments shall be adjusted to the planning level and be relevant for the decision to be made. Furthermore, the assessment shall build on existing knowledge, but update this when necessary [
14] (Section 9). Content requirements set by the authorities can sometimes create controversy, hence the expression about salamanders.
Impact assessments will usually be an integrated part of the plan, at least as an appendix, and must be ready before public scrutiny. This makes the assessment so important for conservation: by publishing knowledge about the status of an ecosystem and the possible consequences of a project, these assessments enable conservation authorities and other stakeholders to take action. Public authorities have a right and duty to participate in municipal planning. This includes government bodies with a special responsibility for conservation, like the national Environment Agency, or the regional County Governor’s environment protection department. Finally, the impact assessments are also an important information source for non-governmental organizations.
Below, I briefly describe some of the ways protection and conservation can be manifested in plans.
5. Safety and Conservation Measures in Plans
Based on the information gathered through the planning process, the municipalities must decide whether safety and conservation measures are wanted and/or necessary. For instance, a flood risk or a population of a rare plant or animal (like salamanders) must be addressed. If the proposed project fails to consider relevant issues, it may be commented on during the public scrutiny. Under some conditions, national authorities can even halt plans completely due to a lack of environmental or societal protection.
Therefore, an important factor in this discussion is how safety considerations affect the content of plans. Whether and how safety and conservation can be combined in planning largely depends on the physical results of these considerations.
A specific legal tool to ensure safety in plans is special consideration zones, which can be combined with guidelines and conditions. The planning part of the PBA states that authorities, based on the RVAs, shall mark all areas with risks, hazards or vulnerabilities as such special consideration zones (SCZs).
Other matters can also be shown as zones, such as agriculture, reindeer herding or conservation of natural or cultural value, and the same area can be within several such zones. However, special consideration zones do not have any particular legal function themselves; they are mainly visual information about factual, legal or other factors that are important for the area. Including the information in the plan is meant to promote predictability and fairness, by indicating challenges for development, other relevant interests, etc.
Specific demands must therefore be given through conditions. If an area is known to contain hazards, the adopted plan must include such conditions necessary to prevent harm or damage. For instance, an SCZ condition can demand safety measures against the relevant threat, like that a rock slide hazard of a steep hill is reduced with fences or nets. (Possible examples are plentiful. Just for avalanche prevention, more than 15 distinct measures have been identified [
5] (p. 126).
According to the act, the planning authorities must mark all risks as SCZs and set such conditions that harm or damage is avoided [
7]. However, neither of these demands are meant literally: only risks and vulnerabilities of a certain importance mandate their own zones, and the aim of conditions is to make the risk acceptable, not eliminate it completely [
15] (p. 188). Thus, much of the deliberation about whether safety issues should be included in plans and how hazards should be handled are left to the municipalities.
Therefore, while there are some rules governing safety in planning, neither the information requirements nor the demand for measures in plans are very specific. Elements of both topics are left to municipal discretion, and specific limits for development areas are inferred from building permit rules. Using the very effective measure of not developing will therefore be a choice the local authorities must make.
As mentioned, the major conservation decisions in Norway are taken by the central government through the process according to the Biodiversity Act. Still, local planning authorities have a clear responsibility for conservation on the local scale, especially through planning. Conservation can take many forms in plans. External decisions (
i.e., national parks and others made under the Biodiversity Act) must be respected by municipalities. Such areas will be zoned as a “green structure”, with a reference to the relevant regulation [
7] (Section 11-7).
Municipalities can protect areas themselves with the “green structure” land use objective. Another possibility is to use special consideration zones. One particular use for such zones, mentioned in the act, is the area adjacent to national parks or other protected areas. SCZs regarding the environment can also have guidelines [
7] (Section 11-8). However, such guidelines do not have the same significance as conditions in safety zones. The guidelines will indicate the general policy, but authorities may choose to deviate from it.
Another difference compared to safety considerations is that the municipalities do not have an obligation to make special consideration zones for conservation. The planning authority may simply exempt the area from a development plan, a sort of passive conservation measure.
Thus, the most effective and predictable way to protect environmental interests in planning is through the land use objective of a “green structure”. As a result, this is very similar to the safety measure of not developing a hazardous area. An area could be regulated as either a “green structure” for conservation or a potential development area with a safety zone, and one would not be able to tell the difference from looking at it. This practical similarity and other interactions are the topics in the next section.
6. Benefits of Interaction
6.1. A Common Measure: Not Developing
It can be argued that the most efficient safety measure against natural hazards, is to not develop hazardous areas. Rather than setting conditions to counter potential hazards, the planning authorities may decide to leave the area as it is, thus eliminating all risk of damage. This can also be called the zero alternative (a description of the zero alternative is actually a requirement for impact assessments; see below; [
14] (Appendix III).
Granted, this is not a viable option in all circumstances. In some regions of Norway, practically all of the available areas are prone to some kind of natural threat. Furthermore, other considerations may outweigh the option of not developing a specific area (resulting in costly preventive measures being used instead). Still, the option of non-development is important and efficient. According to the PBA, planning shall both minimize the risk of existing threats and also prevent the creation of new risks. When comparing societal safety and environmental conservation, I think the most relevant measure is the option of not developing.
The non-development measure can be hard to isolate in older plans. It does not necessarily have a specific marker or condition on existing plans; it can just be an area marked as “green structure” or something else not meant for development. The only telltale sign of it being a safety measure may be found in the preparatory documents, for example in comments from the public scrutiny process. Since the act of 2008, however, planning authorities are obliged to mark known (and significant) hazards as special consideration zones. Therefore, the decision not to develop an area will usually be more visible in recent plans.
An interesting legal question is how much information the municipalities must have about natural hazards in order to mark an area as an SCZ. Take the earlier mentioned example about a wetland near a town and say that considerations apart from safety (such as conservation) dictate that the area should remain undeveloped. Thus, the wetland will not be used for building purposes (nor, for the sake of the argument, will it pose a threat to existing or other planned development). Still, the municipality wants to mark it as a safety zone. If the area is not going to be developed, it will be a waste of resources to survey and assess it, and that would violate the ban against unnecessary planning [
7] (Section 3-1). On the other hand, an SCZ must build on some substantial information, not just a hunch or a general idea about danger.
The solution will probably be to base a safety zone on general maps and models without further (detailed) analysis. Since development is out of the question, precise limits are of less importance and the conditions not necessary. The zone in and of itself will not have any direct legal implications. From a safety standpoint, it will also be better to err on the side of caution, i.e., make the zone larger than strictly necessary. These factors indicate a lower information requirement. However, if the municipality also designates the area for conservation, the need for information might be even smaller.
6.2. Wild Card: Uncertainty
Uncertainty is an intrinsic part of planning; after all, the subject matter is future development, which is impossible to model with full confidence in the results. However, recent insights in the Earth’s natural processes, specifically regarding climate change, have increased the complexity of planning. Arguably, this complexity with its inherent uncertainty is the main challenge facing planning authorities trying to reduce the risks of natural hazards. Most of the expected effects of climate change are known (like floods and landslides). The problem is mainly that the distribution in time and space remain uncertain or unknown: when and where will the consequences materialize? While some trends can be isolated and understood, others are simply not possible to predict with today’s knowledge [
16,
17].
The convergence of uncertainty and legal decisions is a massive and varied subject of its own [
18,
19], and I do not intend to elaborate further on it here. Rather, I will focus on the relationship between uncertainty, safety and conservation. Natural ecosystems with large populations are more resilient to disturbances than smaller, cultivated areas. A sufficiently large forest with its natural biodiversity will be more robust against changes (temperature, pollution,
etc.) than a park. Likewise, a stream or river in its original path will cope better with large increases in water flow than those that have been partly or fully built in (closed) for development reasons.
Therefore, can the combination of environmental conservation and the protection of societal safety have mutual benefits under uncertainty? At least it may be a positive factor. Safety measures, like special consideration zones, mandate a certain level of knowledge. Planning authorities cannot establish zones and conditions based on pure will. On the other hand, not developing an area for conservation purposes is something the municipalities may do at their own discretion. To some extent, it will be easier (demand less justification) to zone an area as a natural environment than as a safety zone.
Therefore, uncertainty related to climate change (and/or other factors) can be a reason to choose a conservation measure together with, or instead of, a safety measure. Just to be clear: the point is not to substitute or disguise a safety measure as a conservation measure. Such an approach would not be legally acceptable. Rather, I intend to show how a reasonable and legal choice of conservation may at the same time protect the public safety and, therefore, further promote the main goal of sustainability.
6.3. Three Reasons to Combine Environmental and Safety Goals
As mentioned above, the various aims and interests in the planning part of the PBA are unranked. The balancing of environmental, societal and other different goals are therefore, in theory, left to the local decision-makers. However, I will argue that some combinations are preferable and should be chosen in competition with others. Below, I present three distinct reasons for promoting environmental goals along with safety interests and how this contributes to overall sustainability.
The first argument has to do with practicality. As the case examples above show, safety and conservation can often be met with common measures. The contents of a plan motivated by conservation may also increase safety. The legal requirements for the relevant measures are mainly comparable, though with somewhat stricter requirements for safety zones and conditions. On the other hand, the legal effect of safety-related conditions is stronger. A combination will benefit both. While the protection of societal safety has a stronger prohibiting effect for certain projects, conservation measures will promote the natural resilience of the ecosystems, which, in turn, enhance safety.
The second argument concerns public support: the successful implementation of a plan depends, to some extent, on how the public judges its content. Societal safety measures tend to have more public support than conservation ones. People generally care more for their own life, health and valuables than the well-being of, for instance, a salamander. However, the support for conservation is growing and could, in some cases, match or exceed the support for safety. Anyhow, a measure that serves both purposes will also enjoy the support of both interests.
The third argument regards legal significance: The main purpose of land use planning in Norway is to promote sustainable development. Many different interests are relevant and, likewise, many combinations possible. Considering the main goal, planning should favor solutions and measures that can be recognized as more sustainable than others.
Content in plans that protect both safety and conservation interests will clearly promote both the environmental and societal (and perhaps economical) pillars of sustainability. Arguably, they make such measures more sustainable than content that mainly promotes one of the aspects. Therefore, they would serve the primary target better and should also have a legal preference.
7. Conclusions: Safety and Salamanders
In this article, I have discussed how sustainability could and should be promoted in comprehensive land use planning. Based on examples from Norwegian planning law, I have shown that two seemingly different interests, environmental conservation and societal safety, actually can be furthered by the same measures. Safety measures usually have more general public support and acceptance, and combining the two can make protection of nature and wildlife less controversial. Finally, promoting more than one aspect of sustainability through the same measure arguably increases the general sustainability of the result. Such an increase ought to have legal significance.
While these results are based on Norwegian law, the reasons to combine safety and conservation are general. Regardless of the legal system, non-development of an area will both protect the natural environment and act as a safety measure. Similarly, the public sentiment towards conservation efforts versus safety measures are probably comparable between different countries. Thus, also the argument about public support is transferable. Legal significance will admittedly vary according to the rules or the jurisdiction. Under any circumstances, it will presumably be relevant to know whether a conservation decision also will influence societal safety.
Finally, I return to the cristatus, the little, amphibious symbol of unpopular environmental demands in Norwegian planning: could its reputation be revived? I definitely think it should. The salamander itself is rather anonymous and neither poses a direct threat nor a benefit for human life and values. However, it thrives in ecosystems that can have large effect on natural hazards. By protecting salamander habitats, the resilience of natural environments are preserved, thereby increasing societal safety. Rather than being a dichotomy, safety and salamanders are a combination that promotes sustainability.