"Expert on the government's decision to run over Kiruna: “Unique”
The government has support in the Planning and Building Act for its decision to force Kiruna municipality to develop a detailed plan for a new mine, says expert Jesper Blomberg. But he was stunned when the announcement came. “It should never happen,” he tells Altinget.
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The government has repeatedly pointed out the importance of increasing mineral extraction in Sweden. This included in connection with the start of the EU Presidency in spring 2023.
Unique and extremely unusual is how Jesper Blomberg, lawyer and expert on the Planning and Building Act, describes the government's decision to overrule Kiruna municipality in the matter of a new graphite mine that the company Talga wants to build in the municipality.
- “It's an exceptional case and extremely unusual, it should never happen. That's why, as a practitioner, you cringe a little when a planning injunction like this actually comes,' he tells Altinget.
It was just over a week ago that the government
decided to order the municipality of Kiruna to adopt a detailed plan to enable the new mine. The government believes that the graphite that Talga wants to mine is of national interest and that there is therefore reason to require the municipality to enable the construction of the mine.
“It's an exceptional case and extremely unusual, it should never happen. That's why you as a practitioner have to be a little careful..Jesper Blomberg Lawyer specializing in the Planning and Building Act
- “This is the best thing for Kiruna, Sweden and Europe,” Minister of Energy and Industry Ebba Busch (KD) told
SVT Norrbotten regarding the decision.
At the beginning of last year, Kiruna municipality suspended work on the detailed plan for the mine, partly because it believes that the company is not prepared to do enough for the town, such as building housing to counteract a “fly in fly out” effect. Talga, for its part, has gone to the government for help, which it has now received.
The planning injunction decided by the government states that the Swedish Geological Survey (SGI) has found that the minerals found in the ground mean that the area should be seen as a national interest.
But the County Administrative Board notes in its assessment that even if there is a national interest, there is no support for the government to force the municipality to make a detailed plan.
“According to the preparatory works to the Natural Resources Act, significant damage to the national interest's valuable substances or materials can refer to measures that significantly impede extraction. The County Administrative Board does not find support in the preparatory works that a “failure” to adopt a detailed plan would constitute such a measure,” writes the County Administrative Board.
“There is room in the law”
Jesper Blomberg, who was previously an investigator for the Building Permit Inquiry and is now a partner at the law firm Delphi, believes that if you look at what the legal text actually says when it comes to the possibilities of forcing the municipality to proceed with the mining plans, the government is right in its interpretation.
- “
I think the legal text definitely allows for this,” he says.
He continues:
- “Just as if you think that a municipality should not adopt a detailed plan to protect nature, you should be able to force a municipality to adopt a detailed plan to actually enable this national interest with a planning injunction.
- Then, of course, one can discuss whether the government has been right in its assessment and I can't really comment on that.
The rule that gives the government the right to trump the municipal power over the land was introduced in 1987 when the municipal planning monopoly was introduced and a major shift of power took place from the state to the municipalities.
- It is almost sacred in the Planning and Building Act that it is actually our municipalities that decide on land and water areas. But then they wanted a small safety valve and so they created this possibility called a planning injunction.
It has not been used
Since then, however, it has not been used. Mainly because it has not been needed, says Jesper Blomberg. “Over the years, it has been enough for the government, usually through the county administrative board, which is the government's extended arm, to 'threaten' to issue a planning injunction for the municipalities to comply,” he says.
- “This provision in the Planning and Building Act is intended to guide action. The fact that the government has this option means that the municipalities are expected to comply. But here it has been turned on its head.
They will still have to pay, even if they leave it to the County Administrative Board. Jesper Blomberg Lawyer specializing in the Planning and Building Act
At the end of last week, Kiruna municipality announced that it does not want to draw up the detailed plan but will leave it to the County Administrative Board. Something that the municipality can absolutely do. But the cost of the detailed plan will not escape them, according to Jesper Blomberg.
- “They will still have to pay, even if they leave it to the County Administrative Board,” he says.
Since the decision concerns a municipality and not an individual, there is no possibility for the municipality to appeal the government's decision.
“We are the ones who will look at what it looks like, which areas are suitable for what. We have to produce master plans and the Planning and Building Act is our prevailing law. So it's difficult for someone to just come and drive over. Birgitta Larsson (S) Chairman of Gällivare Municipal Board
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I find it difficult to see that the government's decision can be attacked in any way.
Jesper Blomberg does not believe that the events in Kiruna are the start of a new trend in which the government is increasingly issuing planning injunctions and running over municipalities.
This is partly because the situation in Kiruna, where the municipality has changed its mind during the process, is special, and partly because the law states that the possibility of a planning injunction should be used sparingly.
- I think it will continue to be very unusual.
This is what the neighboring municipality thinks
Birgitta Larsson (S), municipal councilor in the neighboring municipality of Gällivare, which also has several mining deposits, also hopes that the decision is a one-off event.
- “You might think that it's strange when the municipality has a mandate under the Planning and Building Act. We're the ones who have to look at what it looks like, which areas are suitable for what. We have to draw up master plans and the Planning and Building Act is our prevailing law. So it's difficult for someone to just come and drive over,' Birgitta Larsson tells Altinget.
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Birgitta Larsson (S) Gällivare municipality
Roland Sjögren (KD), chairman of the municipal board in the mining municipality of Lycksele, says that he is not particularly worried that planning injunctions will become more common.
- “If you imagine that the government will now start granting everything, I'm not worried about it. I don't interpret it that way,' he tells Altinget.
He has some understanding for his party colleague Ebba Busch (KD) and the government.
- 'Basically, I defend municipal autonomy in these matters.
I think it should be protected as far as possible, but I also understand that in some cases you may still have to take a decision at a higher level to move forward,” he says."
Regeringen har stöd i Plan- och bygglagen för beslutet att tvinga Kiruna kommun att ta fram en detaljplan för en ny gruva, menar experten Jesper Blomberg. Men han hajade till ordentlig när beskedet kom. ”Det brukar aldrig behöva hända”, säger han till Altinget.
www.altinget.se