– Does the county council really think that an impact assessment has been carried out here? asks Nikolai Winge. Little surprises the experienced lawyer. He believes that mistakes in land matters happen more often than people are aware of. Nevertheless, he reacts strongly to new information in the Viken Park case. Viken Park is the plans for a business park in Fredrikstad that will facilitate green industry. As news has documented, this will involve one of Norway’s largest natural interventions. The area has red-listed species, protected cultural monuments, old pine forest and large amounts of agricultural land. news has also told about weaknesses in the investigation that was carried out before the large natural area was set aside for industry. After going through the proceedings, Winge and his colleague Fredrik Holth react to two things in particular: Firstly, they believe that Østfold County Council never produced an impact assessment that meets the requirements of the law, before the area was proposed to be used for industry in the regional plan. Secondly, that Fredrikstad municipality never considered alternative locations for the business area. Both parts are required by law. VOID? Two of the country’s foremost experts on management believe that the development process in Fredrikstad may be invalid. Photo: Holth & Winge Several politicians have previously told news that they did not know enough about what they agreed to when the area was set aside for industry. This, together with previous news revelations, leads the experts to believe that the process may be invalid. – In this case, there is a risk that the decision is made on the basis of inadequate knowledge, says Winge. They think they have done nothing wrong The two lawyers often travel around and train municipalities and local politicians in the Planning and Building Act. They have already started using Viken Park as an example. Not for succession. – Viken Park is proof that the system is failing, says Winge. Neither the municipality nor the county council believe they have done anything wrong. Both point to the other. The problem is that none of them seem to have followed the requirements of the law, the two lawyers believe. The picture shows a tree that was cut on Tofteberg. Photo: Even Bjøringsøy Johnsen / news The important impact assessment The criticism from the lawyers is therefore about impact assessments. This is a document that will ensure that the politicians have all the facts on the table before they say yes or no. Are there any vulnerable species in the area? How will neighbors be affected by the development? Could it be better to develop elsewhere? The administration in county councils and municipalities is responsible for preparing this report. Østfold County Council should have done this when in 2018 they designated Tofteberg as an industrial area in the county plan. – The document must ensure knowledge of the plan’s impact on greenhouse gas emissions, natural diversity, outdoor life and so on, before decisions are made, says Holth. The problem, according to the lawyers, is that the county council does not seem to have done this. When news asks for access to the impact assessment for the plan, we are told that we are asking for a document that does not actually exist. An impact assessment does not have to be a separate document, but it must be part of the plan, according to the Ministry of Local Government and District Affairs. The county council believes they have carried out the impact assessment as required by law and that it is part of the plan itself. But the plan also does not contain information about which investigations have been carried out or what kind of nature will be lost. The plans of the county municipalities are not legally binding. This means that the municipalities must not do what the counties propose. Photo: news Using a previous study The county council replies that the plan is overall and strategic. They also point out that they prepared an impact assessment for a similar regional plan in 2009, nine years earlier. They believe this is also applicable in 2018, because they have continued maps and guidelines. – All the documents, both the impact assessment in 2009, the maps, the guidelines and the impact assessment in the plan description in 2018, have been subject to public inspection, and have been accepted as comprehensive by the hearing bodies, including the state manager, writes county planning manager Elin Tangen Skeide to news. But in 2009, the plans for Tofteberg did not exist. So the relevant area was not part of the investigation at the time. Another question is whether the county council investigated alternative placements. The county planning manager says they removed Årum and Moum from the plan at the same time as adding Tofteberg. By evaluating the two areas against each other, she believes that they have looked at other possibilities, as required by law. Response from the county council The county council writes this in an email to news: When the county plan was rolled out in 2018, a revision of the map base in the county plan was carried out. This work involved all the municipalities in Østfold, state administrators, relevant state agencies and with associated public consultation. During the revision of the thematic maps for the county plan, the following themes were assessed and mapped: Nature conservation areas Regionally valuable cultural environments Regionally valuable cultural landscapes Regionally important outdoor areas Tofteberg was not considered to have important regional values according to any of these criteria. In contrast, there are nearby areas that were considered to have these qualities. Emphasis was therefore placed on reducing the remote effects of the development on Tofteberg (Viken Park). It is important to clarify that the area at Tofteberg was not laid out as a development area in the county plan, but was entered as part of a long-term development boundary. Through the guidelines of the county plan, the municipality was commissioned to assess all relevant impacts through ordinary treatment of the areas in accordance with the Planning and Building Act. It is only when a zoning plan is adopted that there must be a complete and concrete impact assessment that shows “all possible consequences of the area being laid out as a business park”. – Evidence of a system that does not work Back in the office at Holth and Winge, the opinion is different. They have read the regional plan thoroughly. Winge believes there are no signs that an impact assessment has been carried out that meets the requirements of the law. He explains that it is correct that an impact assessment of the regional plan can be at a more general level. But at the same time, the legislation sets a number of requirements for the information to be disclosed. – It must show all possible consequences of the area being laid out as a business park, including that all relevant and realistic locations have been mapped and assessed. Only then can a decision be made on sound grounds, he says. The major impact assessment that the politicians must decide on now shows that developing the area will have major consequences for nature. Photo: Even Bjøringsøy Johnsen / news Holth also questions why the state administrator did not point this out when the regional plan was put out for consultation. – This also testifies to a system that does not work. In many ways, the media do the job that the control bodies in the administration should have done, says Holth. Carl Henrik Jensen, head of the climate and environmental protection department at the State Administrator in Østfold, Buskerud, Oslo and Akershus, replies to news in an e-mail. – The county municipality itself is responsible for planning in line with the Planning and Building Act. We believe that it is not right for us to now retrospectively make an assessment of whether an impact assessment of the regional plan has been carried out in accordance with the legislation. The Ministry of Local Government and District Affairs is responsible for the regulations in this field. They answer on a general basis, but are clear that such a plan must be assessed. – This matter should be of interest to the ministry, says Holth. news has also requested access to the impact assessments of several other regional plans in the country – and received them. Both as separate documents and as part of the plan. The lawyers therefore believe that the county has made a clear procedural error. But what about the municipality? – Sounds very modest In both 2020 and 2023, they included various parts of Tofteberg in the area section of the municipal plan. news has previously told how little the municipality described the nature of this process. But the lawyers also react to something else: that the municipality never investigated alternatives. This is also a legal requirement. “Impact assessments for spatial plans must give an account of relevant and realistic alternatives”, the ministry states. The municipality believes that they did not need to go looking for more suitable areas. After all, the county municipality had set aside the forest for food, argues the municipality. They believe it is the county council’s responsibility to assess location. The municipality has drawn up an impact assessment for the area part of the municipal plan. When the area was set aside for industry in 2020, one A4 page was devoted to what will probably be one of the country’s biggest natural interventions. – Is an A4 page comprehensive enough for politicians to make an informed decision? – No. This sounds very modest, says Holth. – It is completely absurd, says Winge. This is the impact assessment that was presented to the politicians in 2020. Out of 309 pages, one page was set aside for the assessment of the Viken Park area in Tofteberg. Illustration: news Here you can read the entire impact assessment for Viken Park from 2020 (PDF). – Lack of alternative locations Winge says that it is not unusual for permission to be granted for nature interventions, without an adequate impact assessment having been carried out. – It seems that both builders and the authorities perceive impact assessments as a troublesome element. It’s not that strange after all. An impact assessment will be able to show all the negative aspects of a development project. This is not good marketing, for neither the developer nor local politics. The photo was taken in the forest at Tofteberg in the spring of 2024. Photo: Even Bjøringsøy Johnsen / news Many studies lack descriptions of alternative locations, says Holth. This is important when new interventions are planned. Back to the start? If there are shortcomings in the municipality’s investigation, they may have to move back to the beginning with the Viken Park plans, according to the lawyers. Then they risk having to start the planning process again to correct any errors. For example, the municipality may have to consider alternative locations. – It may well be that the conclusion will be exactly the same from a political point of view – that it is this area that you want to use. But then you have followed the applicable rules of procedure, says Holth. Nikolai Winge and Fredrik Holth believe there may have been procedural errors. Photo: Holth & Winge Holth and Winge also present several other scenarios that may become relevant: The state administrator can start a legality check if they believe that one or more procedural errors have been committed. Politicians can request further investigations if they believe the knowledge base is too poor. If the politicians adopt the plan, this can be appealed. Neighbors, environmental organizations and other interested parties can do that. No matter how far you have come in the process, the politicians can drop the project. – They can always say no. If you are unsure whether this is a good decision, then this is exactly what is in the local political mandate, says Holth. The politicians in Fredrikstad are scheduled to take a final position on Viken Park before the New Year. Published 14.10.2024, at 05.28
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Lawyers believe procedural errors may have been committed in the process with Viken Park – news Østfold – Local news, TV and radio
