City mulls using regulatory muscle to silence Metro neighbours

Change in regulatory approach could take away ability to halt noisy construction

Nov 6, 2013

The city of Copenhagen may have found a way around Metro construction stoppages due to neighbours' complaints: just change the laws to render the complaints basically impotent.

The city’s outside legal council, the law firm Plesner, said that the Environmental Protection Act currently in effect allows the City Council – which owns 50 percent of Metroselskabet, the company responsible for the Metro expansion – to apply the law so that the construction would be directly regulated by the city, rather than subject to specific injunction as it is today. Under the current system, work can be stopped while appeals to entities like Natur- og Miljøklagenævnet, the environmental appeals board are being heard. The system being recommended by Plesner – which is how construction was handled until October 2012 – may prevent the work stoppages that have occured since the changes were made by granting the council the ability to grant waivers for work and noise beyond what is allowed in the forskrift, or pre-existing regulations.

“Handling subway construction in the city through regulation could prevent the stop-and-go caused by appeals,” they wrote.

Ellen Basse, a professor of environmental law from the University of Aarhus, said that the move would reduce the rights of those living near Metro construction sites, making it harder to get around the city and file specific complaints with non-municipal entities. She said the city should not use its position as co-owner of Metroselskabet to create new rules to solve the problems created by the Metro expansion.

The lawyers from Plesner said that the manoeuvre would deprive Metro neighbours of "a certain degree of legal certainty” but said that the need to put an end to construction delays was in the interest of the city as a whole.

Basse said that the firm’s recommendation to use environmental laws to take away the rights of citizens was just wrong.

“It is not the purpose of the Environmental Protection Act – which would form the basis of any new regulations – to weaken citizens' protection against noise,” Basse told DR Nyheder. “On the contrary, the rules are there to protect the neighbours.”

One group of neighbours said the neither approach has been an effective vehicle for addressing their complaints.

"If Copenhagen's council choses to follow their external legal advice, they will return to regulating the construction of Metro City Ring through waivers (forskrift); A procedure they changed in October 2012," wrote a the members of FANN, a group of Metro neighbours in Nørrebro." It is our opinion that the decision to regulate by “påbud” – the current method – has absolutely not been in the neighbors favor when implemented in practice, but the return to waivers could also be seen as an attempt to circumvent the neighbours ability to file complaints."

The group expressed surprise at what it called a U turn" and said that any attempt to hinder the complaint process would put the city in violation of various accords and laws.

The wrong signal
Lawyers said that they realised that new regulations could not be applied à la carte and recommended that the city create new statutes that would apply to all major construction projects, not just the Metro.

While work stoppages due to neighbour complaints have caused delays in Copenhagen, there have been no such problems just across the border in Frederiksberg. Construction there is regulated through municipal statute, and if extended working hours are needed, the council simply grants a waiver.

Copenhagen City Council member Klaus Mygind (SF) – who is also a member of Metroselskabet's board of directors – said that making the move would send the wrong signal.

“It will be perceived as if we are trying to deny residents of their rights,” he told DR Nyheder. “It is clear that they want underground construction to be completed as soon as possible so that they can get back to their homes.”

Both Metroselskabet and the city have repeatedly emphasised that timely construction and avoiding cost overruns depend on the ability to do evening and night work at several construction sites.

Any decision on the legal advice given by the firm is not expected until next year.