Navigate through the process of appealing beach protection waiver denials

Navigate through the process of appealing beach protection waiver denials 

Have you recently had your application for beach protection dispensation rejected and are unsure how to proceed? There may be several reasons why you want to appeal such a decision. Perhaps you are planning to carry out construction projects near a coastal protection area, but your application for an exemption has been rejected. Or perhaps a decision about extended beach protection affects your access to nature and outdoor life in a significant way. Regardless of the reason, you can appeal the decision to either the Land and Environment Court or the County Administrative Board.

In this article we will walk you through the process of appealing a beach protection decision and give you advice on what to consider when formulating your appeal. If you need help, don't hesitate to contact us!

Beach protection exemption: How does it work?

Although there is a ban on taking certain actions in a beach protected area, you can apply for an exemption from this ban. The municipality and in some cases the county administrative board can grant exemptions if there are special reasons. A balance of interests is made where individual interests are also taken into account. A restriction on the individual's right to use land or water must not go beyond what is required to achieve the purpose of the protection.

Dispensation can only be granted for areas specified in Chapter 7 of the Environmental Code. § 18 c–d. These areas include:

- Areas that have already been used in a way that makes it irrelevant for the purposes of beach protection.

- Areas that are well separated from the area closest to the shoreline by a road, railway, building, business or other exploitation.

- Areas needed for a facility that must be located by the water for its function and the need cannot be met outside the area (for example a jetty).

- Areas that are needed to expand an ongoing business and the expansion cannot be carried out outside the area.

- Areas that need to be used to satisfy an urgent public interest that cannot be satisfied outside the area.

- Areas that need to be used to satisfy another very urgent interest (for example for the Armed Forces).

Om du har ansökt om When should I appeal the decision on beach protection dispensation to the Land and Environment Court?

Beach protection dispensation from the county board and has been rejected, this must be appealed to the Land and Environment Court. It can then be appealed to the Land and Environment Court of Appeal. The same process applies if you are to appeal a decision on extended beach protection.

The County Administrative Board decides on exemptions in nature reserves, cultural reserves, natural monuments, biotope protection areas, animal and plant protection areas, environmental protection areas, Natura2000 areas, landscape image protection areas and water protection areas.

In practice, it is usually the municipality that is the dispensation authority. In the environmental code, it is stated that the county administrative board may issue a beach protection dispensation if it concerns a defense facility, public road or railway, or an area that is protected according to other provisions in the code and the protection has been decided by someone other than a municipality.

When should I appeal the decision to the county administrative board?

If you have instead applied for a beach protection dispensation from the municipality and been refused, this must be appealed to the county administrative board. A decision by the county administrative board to reject an appeal against the municipality's decision to reject the application for beach protection dispensation may be appealed to the Land and Environment Court.

In most cases, it is the municipality that decides on beach protection dispensation. The County Administrative Board therefore handles many cases regarding appeals of exemptions.

The County Administrative Board can also on its own initiative review a dispensation decision granted by the municipality. If the municipality has announced a beach protection dispensation, they are also obliged to notify the county administrative board of this. If the county administrative board then assesses that there are reasons to assume that there were no prerequisites for the dispensation, or if there were deficiencies in the handling of the case that may have had an impact on the outcome of the issue of dispensation, they examine the case.

Who can appeal?

If the appeal, for example, concerns a decision on beach protection dispensation against which the applicant has the right to appeal. As a rule, other private individuals do not have any right to appeal a decision concerning a refusal or a decision to revoke an exemption. Of course, there is an interest for others to appeal such decisions with regard to public rights, but this is not considered to be a strong enough reason to be able to appeal the exemption decisions of others.

The Land and Environmental Court of Appeal has interpreted the right of appeal narrowly in cases of coastal protection dispensation. In a 2001 case, the court rejected an appeal by a property owner's neighbor who had invoked a right of appeal due to neighbor law and common law relations. The court held that it did not constitute any special right to be able to appeal. However, there are exceptions. In another case from the Land and Environment Court of Appeal from 2006, a neighbor who risked increased traffic due to the coastal protection dispensation can appeal the decision.

The Environmental Protection Agency can appeal against decisions on beach protection dispensation announced by the county administrative board, even though they have not brought an action in the case. The Swedish Environmental Protection Agency partly has the role of supervisory authority and therefore ensures that the public interests that the beach protection must safeguard are preserved. If they believe that a dispensation decision is against the public interests, they can therefore appeal against a dispensation decision.

In some cases, this responsibility also falls to municipal boards (also called environmental boards). Because of this, they can also appeal if they believe that a decision conflicts with the objectives of beach protection.

In addition, non-profit associations have the opportunity to appeal decisions about beach protection dispensation. In such cases, they must be non-profit associations whose purpose is to safeguard outdoor, nature conservation and environmental protection interests.

What applies to you as a neighbor who wants to stop a building permit?

You as a neighbor have an opportunity to stop a building permit that has been granted by appealing the decision. Note that the mere fact that you as a neighbor appeal against a building permit does not mean that the construction may not be carried out. However, a temporary ban can be announced by the county administrative board (or a higher authority) deciding to inhibit the building permit decision, which can only happen at an express request for this from you as the complainant.

Raw neighbors also have an opportunity to appeal the decision. Neighbors are owners of property that directly adjoins the property to which the permit or advance notice refers. In practice, even neighbors whose property is separated from the property to which the permit or advance notice refers only by a road have been considered to be equated with raw neighbors. Neighbors other than raw neighbors can appeal the decision, but the possibility is much more limited than for raw neighbors who want to appeal the decision.

How do I appeal?

First of all, it is important that your contact details appear. Such information is name, social security number, postal address and telephone number. You must then state your claim and circumstances that support the claim. You must also state which decision is being appealed. You should also state the evidence that you want to rely on and what you want to prove with each individual piece of evidence. Here it is important to be clear and factual.

For example, if you want to appeal a decision on extended beach protection, you must explain how the county administrative board has not proven that the purposes of the beach protection cannot be met with only 100 meters of beach protection. In the environmental code, it is stated that the county administrative board must take individual interests into account when making decisions. In order to have the decision overturned, you should therefore explain how the extended beach protection limits your interests and make it clear that the decision is not reasonable. You can advantageously attach pictures and maps to support your claim.

If the appeal contains deficiencies in such a way that the document cannot be used as a basis for review on the merits, the court must order the appellant to remedy the deficiency within a certain time, under penalty of his or her claim being rejected. Such an exchange of letters postpones the processing time. We therefore recommend that you seek the help of a lawyer to draft your appeal to avoid possible shortcomings and, in the worst case, rejection.

How long does it take to appeal beach protection waiver decisions?

You must appeal a dispensation decision from the municipality within three weeks of being informed of the decision. It is sent to the county board. The corresponding deadline applies to appeals against the county administrative board's decision. However, it must be sent to the Land and Environment Court. The Land and Environmental Court then checks that the appeal has been received in time. If it is received too late, the court rejects the appeal. This means that the judgment applies. Therefore, make sure to be out in good time.

How long the case processing then takes with the relevant authority cannot be answered with certainty. There are no fixed time frames. However, according to the Administration Act, an authority has the obligation to notify you as a party if your case will be significantly delayed. If it has also taken more than 6 months since you submitted the appeal, you have the opportunity to demand in writing that the authority make a decision on the matter. The authority must then, within four weeks from the day such a request was received, either decide the case or reject the request for a decision.

In addition, the county administrative board, as previously mentioned, has the opportunity to review the municipality's decision regarding beach protection on its own initiative. If they believe that there are reasons to review the municipality's decision, they must take a position on the matter no later than three weeks from when they received the case from the municipality.

What can we help with?

Our lawyers specialize in beach protection issues. We help you appeal decisions about beach protection dispensation or if you want help applying for a dispensation. Welcome with your questions! The first contact is free of charge and you can reach us at T: 0704-185593 or M: info@treschowpartner.se.

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