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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?
In principle, the cantons are responsible for spatial planning in Switzerland, but the confederation sets out the basic legislation in this regard. The cantons draw up plans for spatial development on their territory in coordination with the confederation and the cantons, which must be approved by the Federal Council. However, the actual in-out zoning and planning is mainly incumbent on the municipalities.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
Buildings and facilities may be erected or modified only with official approval. A building application must be submitted in writing to the responsible local building authority. In particular, a building application must indicate the purpose of the building, the materials to be used and the area affected.
A building owner is generally entitled to a building permit if:
- the planned building conforms with the zone;
- the land is developed; and
- the planned building complies with the relevant building regulations.
Can planning decisions be appealed? If so, what is the appeal procedure?
An objection period is available during a building application's validity period, the duration of which varies from canton to canton (usually 14 or 30 days). An objection must be submitted in writing and contain an application and a statement of reasons. Only those affected by the planned building (usually neighbours) are entitled to object to planning decisions. In Switzerland, appeals can, in principle, be lodged through three instances.
What are the consequences of failure to comply with planning decisions or regulations?
If an application is incomplete, the respective authority will request the submission of missing information. However, if the building project does not comply with legal regulations, the application will be rejected and the applicants must file an appeal. Since an appeal procedure is time consuming and costly, it is worthwhile developing the building project with architects and, if necessary, in consultation with lawyers, so that all requirements are fulfilled from the start.
What regime governs the protection and development of historic and cultural buildings?
According to the Federal Constitution, historic preservation in Switzerland is, in principle, the responsibility of the cantons, which regulate preservation through cantonal laws. However, the confederation sets out basic laws, such as the Nature and Cultural Heritage Protection Act, regulating the financial support of organisations active in the fields of nature conservation, heritage protection and monument preservation. Swiss Heritage is the largest non-profit organisation in Switzerland committed to the protection of architectural monuments.
What regime applies to government expropriation of real estate?
Swiss law makes a distinction between formal expropriation (ie, where the state becomes the new owner of real estate) and material expropriation (ie, where private ownership is merely legally encumbered by the state). In addition to the Federal Constitution, expropriations are regulated by federal laws and special cantonal regulations.
Since the formal expropriation of real estate constitutes an encroachment on the constitutional fundamental right of a guarantee of ownership, it requires sufficient grounds for expropriation and must be fully compensated. The state can expropriate only if public interests (eg, public infrastructure) require it and the intervention is proportionate. This is particularly the case in the construction of national roads and public transport facilities.
The material expropriation of property is carried out under the spatial planning law (eg, if a building ban is imposed). The private individual remains the owner, but is restricted in its use of the property.
What is the required notice period for expropriation and how is compensation calculated?
Expropriations, as state projects, are published or, in special cases, reported directly to those affected. Private individuals have 30 days after a public announcement to raise objections. If an appeal is made, an agreement procedure is necessary, in which the conditions for expropriation are examined and compensation is assessed. The duration of the procedure depends on the individual case. In any case of expropriation, the owner must be fully compensated in the form of a cash benefit. The value of the compensation is based on either objective criteria (ie, the market value of the land plot) or subjective criteria (ie, the capitalised earnings value of the land plot).
What environmental certifications are required for the development of real estate and how are they obtained?
Construction projects must always comply with the environmental protection regulations of the federal government and the respective canton. It is therefore recommended to consult the relevant laws before submitting a building application. Federal law established minimum requirements, particularly with regard to emissions, waste and soil protection. In the case of special construction projects – in particular, commercial construction with facilities that can pollute the environment – the responsible municipality examines the environmental compatibility through its own assessment procedure.
What environmental disclosure obligations apply to real estate sales?
Environmental information relating to land plots (eg, the existence of known contaminated sites) must be disclosed when selling land plots. In the case of land sales, the general rules of the Code of Obligations regarding the seller's warranty for physical and legal defects apply. Accordingly, sellers are liable to buyers for defects which reduce the value of the property, provided that the sellers’ warranty for defects in the property was not waived in the publicly notarised purchase contract. However, if sellers conceal defects from buyers in a malicious manner, a waiver of the warranty is always void.
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?
In Switzerland, the so-called ‘polluter pays’ principle applies (ie, the party responsible for the costs arising from environmentally damaging behaviour or an environmentally damaging plant must bear these costs). The costs are thus passed on to the polluter. The polluter pays principle is also intended as an incentive to behave in an environmentally friendly manner and thus serves to indirectly influence behaviour.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
Regulations on the use of energy are the responsibility of the cantons. The cantons enact laws which regulate the energy use of buildings, set emission values and provide for penalties if buildings fail to comply with the minimum requirements or maximum values. In future, uniform nationwide incentives to increase energy efficiency in the form of tax incentives will be introduced; at present, such incentives have been implemented only on a selective basis or in a few cantons.
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