PhD defence - Mia Celine Sørensen Greve

The ideal of sustainable urban development is widely accepted and recognized in national and international policies and conventions, and has been a focal point in much of spatial planning literature. The concept often centers on the balancing of social, environmental, and economic considerations, and is also expressed in ideals for public participation in planning, desired urban forms, and specific technologies. The practice of spatial planning is intertwined with the national formal planning frameworks that organize the designation of land use and development rights. These formal planning systems are recurrently identified as ‘barriers’ to planning for sustainability, but this identification is often not associated with any legal analysis and does not identify the source of the perceived constraint except ‘the law’.

This general trend is reflected in Danish public debate. The Danish Planning Act, and especially the local planning instrument, is consistently identified as a barrier to planning for sustainable development and adjacent considerations such as climate mitigation and biodiversity. However, it is not clear what the legal nature of these perceived constraints on planning practice are, or how they might be solved. This thesis seeks to discover potential legal constraints to integrating sustainability as a consideration in the planning instruments of the Danish Planning Act. It takes a broad view of the law and the meaning of legal constraints, looking for ‘barriers’ in existing legal norms, in implementation and planning practice using the legal framework, and in how the law is made, investigating a decade of amendments to the Act and the considerations that have shaped it.

The thesis consists of three papers and a synopsis. The analyses draw on legal doctrinal methods as well as document analysis of plans and preparatory works and focus on the Danish context. The synopsis introduces the theoretical background and places the papers within an international context, focusing on the characterization of formal spatial planning systems, on the ideals and objectives of sustainability in planning literature, and on the ‘barriers’ identified in the conflicts between planning and planning law in the international literature, as well as proposed solutions.

The first paper uses doctrinal analysis to explain the requirements of the local planning justification in the Danish Planning Act, and why considerations such as sustainability often fall outside of the scope. It observes that the introduction of new, specific legal bases to bring such considerations inside the scope fails to address the underlying causes and risks creating the need for more amendments. The second paper analyses Danish local plans and their implementation of climate adaptation measures and reveals that plans are frequently affected by legislative flaws such as lack of legal basis and lack of precision, which inhibits their potential to work. The third paper investigates the development of the Danish Planning Act across ten years between 2013-2023 and finds that amendments are disproportionately motivated in considerations of economic growth and development, increasingly introduce municipal and ministerial discretion, and have eroded public participation measures. Besides, as observed in the first paper, amendments often introduce specific legal bases that fail to address underlying legal principles, and which introduce incoherence. The concept of ‘sustainability’ is also used to justify all kinds of amendments without accurately reflecting the expected legal effects.

The synopsis discusses these results and finds that structuring the identification of legal constraints by investigating existing legal norms, implementation and planning practice, and processes of legal institutional change, contributes to distinguishing between legal and extra-legal circumstances which constitute constraints, such as difficulties in implementation and lack of political intent to pursue sustainable development. It finds that the identification of the Danish Planning Act as a barrier primarily centers on lack of legal basis to adopt highly detailed regulation for local development , and discusses how amendments to the Act have prioritized flexibility, have increased complexity by introducing incoherence, and how the underlying interpretation of ‘spatiality’ in the Planning Act remains an unaddressed source of incoherence in conflict with the interpretation of sustainability dominant in public debate. The thesis argues for the importance in legal doctrinal analysis in identifying legal constraints and properly contextualizing the identification of ‘barriers’, and it encourages attention to high quality drafting to avoid introducing further complexity into the Planning Act.