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Planning and environmental issues
Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?
Austrian building law provisions (eg, zoning laws and construction regulations) differ between the nine federal provinces (and in certain instances between the respective communities within these provinces). They can be strict and the approval process may have to be carried out under different authorities.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
Planning permission requirements vary according to the envisaged location, as each federal province has enacted its own building, planning and zoning laws. In some provinces, notifying the planning authority suffices for certain types of building. In others, a formal building permit must be obtained in the course of an administrative procedure (which in some cases requires the direct neighbours’ participation). In addition, federal laws (eg, heritage protection, air traffic safety and forest protection laws) may apply.
Can planning decisions be appealed? If so, what is the appeal procedure?
Although no ordinary appeal against planning decisions is available to individuals, such decisions may be challenged in the public law courts in cases of a violation of mandatory laws.
What are the consequences of failure to comply with planning decisions or regulations?
Failure to comply with planning decisions or regulations will result in the necessary building permits not being granted for a construction project. If the project is still carried out, the competent authorities may order and carry out remedial measures, such as demolishing the construction.
What regime governs the protection and development of historic and cultural buildings?
The protection and development of historic and cultural buildings is governed by the Heritage Law, which is administered by the Federal Heritage Commission. Subsidiary provincial heritage laws, which differ between the nine federal provinces, may also apply. Existing heritage protection of real estate is generally included in the publicly available land register.
What regime applies to government expropriation of real estate?
Various laws (eg, the Railroad Expropriation Act and various road, electricity and water laws) make government expropriation of real estate possible, depending on the future use of the land.
What is the required notice period for expropriation and how is compensation calculated?
Due to the various laws which can apply to an expropriation, a general overview on notice periods and compensation calculation cannot be provided here. However, as a general rule, the amount of compensation will be determined by an independent court on the basis of an expert opinion.
What environmental certifications are required for the development of real estate and how are they obtained?
Environmental concerns are generally taken into consideration during the administrative procedure for granting necessary building and operating permits. If certain materiality thresholds are met in connection with a project and considerable negative environmental effects are expected, an environmental impact assessment must be carried out.
What environmental disclosure obligations apply to real estate sales?
No particular environmental disclosure obligations apply to real estate sales in Austria. However, case law assumes a seller’s fraudulent intent if information which would otherwise typically be disclosed or could reasonably be expected to be disclosed in fair business dealings is withheld from the potential purchaser.
What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?
As a general rule, the so-called ‘polluter pays’ principle applies to environmental clean-ups (ie, the party that causes pollution is primarily responsible for its clean-up and the associated costs). In certain instances – mainly, if they agreed to or tolerated the pollution – the owner of a polluted land plot and his or her legal successor may also be held liable in the second degree.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
Under the EU Energy Services Directive (2006/32/EC), Austria must achieve energy savings of 9% (based on its average energy end use of 2001 to 2005) by 2016. Consequently, the nine federal provinces are financially supporting (and in some instances requiring) energy efficiency and emissions reductions under several different instruments (which vary between the provinces).
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