What can be built where it is not actually permitted to build?

The cornerstones of spatial planning in Switzerland include the separation of building and non-building areas, as well as the goal that construction activity should be limited to the former as much as possible. However, what is clear in principle is complicated and controversial in detail. The political system has been struggling to deal with the issue for years, but now seems to be on the way to new decisions. As things stand, relatively flexible rules and distinct implementations in different cantons are to be expected, though the political debate is in full swing and the final word has not yet been spoken. 

Popular initiative against the “building boom outside the construction zones” 

There are two interlinked issues on the political agenda. On the one hand, the popular initiative “Against the urbanization of our landscape” (also known by its short German term, “Landschaftsinitiative”) was launched in September 2020 to – in the words of the initiative committee – “stop the building boom outside the building zones”. It wants to anchor the principles in the Federal Constitution that new buildings and facilities in non-building areas must be necessary for agriculture or be tied to a specific location. Agricultural buildings may not be converted for residential or non-agricultural commercial use, and non-agricultural buildings may not be enlarged or replaced by new buildings. 

Revision of the law as a small compromise

On the other hand, the second stage of the partial revision of the Spatial Planning Act (RPG 2) seems to bring “an almost never-ending story” to completion, according to one speaker at the Council of States debate. The narrative goes back almost a decade to the 2013 referendum on spatial planning (RPG 1). After several consultations and a no-action decision in the National Council, the Council of States Environment Commission worked on a compromise. This was adopted in the summer session by the Council of States after minor adjustments in the overall vote without any dissenting votes. Under the label “RPG 2 kompakt”, it is now also an indirect counter-proposal to the landscape initiative and is intended to induce the latter’s committee to withdraw its popular initiative.

At the heart of the revision of the law is a stabilization target for areas outside building zones. Stabilization ought to take place via an overall concept in the cantonal structure plan. The focus is not on regulations but incentives, so that superfluous buildings disappear from the landscape. Under certain conditions, cantons are to pay demolition premiums for buildings that are no longer in use. Amounts of 20,000 to 30,000 francs per object are being considered. According to Wüest Partner, such a premium would finance the demolition of properties with around 100 to 300 m2 of usable floor space, whereby it would be appropriate to differentiate this premium according to typology and condition. The counter-proposal allows more flexibility in implementation than the popular initiative. In particular, agriculture and tourism will benefit from this arrangement. Another topic in this context is the protection of existing plants. This has taken on a new virulence since the Federal Supreme Court ruled in April 2021 that in the case of illegal buildings outside the construction zone – unlike those inside the construction zone – the obligation to restore the lawful condition does not lapse after 30 years. The National Council passed a motion in the spring to change this.

At the beginning of July 2022, the National Council’s Environment Commission dealt with the Spatial Planning Act. In principle, it welcomed the Council of States’ version of the bill. According to the media release, however, the need for adaptation was also criticized. The commission’s deliberations will continue at the end of August at the earliest.

Very different levels of concern

Currently, 22% of the buildings are not located in a construction zone. Many were built decades ago, when this was still legal, and today enjoy protection as existing buildings. Exceptions have also been granted time and again, such as for agriculture. Throughout Switzerland, around 5% of inhabitants live and 4% of employees work outside the building zones. Especially in cantons with many scattered settlements, more than 10% of people live outside these zones.

A significant number of buildings outside the building zones were, and are, used for agricultural purposes. Furthermore, private individuals who occupy a building in the agricultural zone are strongly affected. The usability and value of these buildings depend heavily on the rules regarding the protection of existing buildings that will eventually be enacted. Another issue is the new rules for commercial enterprises and other businesses with operating sites outside the building zone. And at the state level, the impact on mountain and rural communities is disproportionate.

The majority of institutional investors are not directly affected as their portfolios are generally located mainly in the construction zones of cities and agglomerations. However, indirectly, the discussion is relevant for them, as the stabilization of construction activity outside the building zone strengthens overall demand in the centers and contributes to further inward settlement development. After the reduction of building zones has increased the pressure on non-building zones, they are now more strongly protected by new goals and rules.

Next steps

The bill is still awaiting a vote on the differences between the National Council and the Council of States. The latter has already recommended rejection, and the National Council is expected to follow suit. After the final vote in parliament, which could take place next winter or spring, the landscape initiative’s committee will decide on the so-called conditional withdrawal of the petition. If it is withdrawn and no one calls for a referendum against the law, the Federal Council can put it into force. Otherwise, the people and the cantons must decide on the initiative. Experience shows that the population attaches great value to landscape protection, which simultaneously mobilizes left-green and conservative circles. For instance, the Rothenturm initiative in 1987 for the protection of moors as well as the second-home initiative in 2012 are two rare cases from this subject area in which popular initiatives reached the majority of both the people and the cantons. However, the initiative is also likely to be met with significant opposition. 

So, it will be exciting to see how the dice will fall concerning what can be built in non-constructible areas, and how.

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