Konstantinos Karatsolis, Lawyer, PhD Candidate, Environmental and Urban Planning Law
Ifigenia Tsakalogianni, Lawyer, LLM, MSc
Published: Nomiko Vima, Issue 3 – May-June 2023 (NoV 71 2023/3)
I. Introduction – The concept of the city and recent case-law developments
The city constitutes the tangible imprint of the effort of heterogeneous collectivities and individualities to reshape the world in which they live according to their wishes – the result of the balances and convergences that take shape and acquire substance in space. By building the city, human beings, in essence, redefine themselves, delineate the framework of social coexistence, creating a regulatory order for the environment in which they live. Through it, our culture, our State’s self-image, and the characteristics we attribute to our tradition and our outlook are, to a large extent, determined.
Recently, prompted by court decisions (2026/2022 and 2028/2022 of the Athens Administrative Court of Appeal), an interesting but also, for citizens’ rights and legal certainty, critical debate has begun regarding the heights of buildings erected pursuant to the provisions of the New Building Regulation (NOK) in cases of densely built large cities. The two articles falling within this category are Articles 10 and 25 of the NOK, by which the legislator sought to promote urban transformation, energy upgrading, and urban regeneration in Greece.
Studying the reasoning of the decisions, as well as of the applications for annulment that have come to public attention in connection with the intense debate that has begun, the following questions arise:
- Do the provisions of the NOK improve or make more difficult citizens’ standard of living, as regards their provisions on building heights?
- Are the relevant height provisions measures requiring urban planning, or are they small interventions for the benefit of cities?
- Are they of horizontal application, or is each case examined separately, with the available incentives for changes and energy upgrading determined ad hoc?
- Do they raise concerns as to the aesthetics of areas and neighbourhoods, or do they constitute a necessary precondition for the evolution of the city in view of the path towards energy neutrality?
- Do they conflict with, or operate alongside, the manner of erecting buildings as previously provided for by specific Decrees, following technical documentation and reasoning?
- Are the more specific regulations of Laws and Decrees, in relation to the regulations of the NOK, permissible by virtue of the principle of specificity (lex specialis), or do they conflict with its general provisions?
All of the above are critical and fundamental issues for the Court’s assessment, particularly as regards the question of the constitutional harmony of Articles 10 and 25 of the NOK – that is, its most “modern” urban planning provisions – with Article 24 of the Constitution, in light of which they must be examined. Arriving at the present day, in view of the international and European requirements for energy and climate neutrality in the European area, which include and affect the built environment, such as the European Green Deal, the relationship of the provisions of the NOK in force with the concept of acquired urban planning status, the specific regulations of Presidential Decrees in force for particular areas, the historical development of Building Regulations in relation to international changes, and the significant developments in the field of energy upgrading of the residential environment, becomes important.
II. The concept of acquired urban planning status
In view of the constitutional obligation under Article 24, the redevelopment of regions and the planning, development, expansion, and improvement of cities and residential areas generally is a matter for the regulatory competence and control of the State, in order to serve the functionality and development of settlements and to secure the best possible living conditions. At the same time, the relevant technical choices and weighing of considerations are made according to the rules of science, that is, not arbitrarily or on the basis of empirical criteria, but subject to urban planning and spatial planning rules and, in any event, to scientifically documented studies and proposals. In this context, theory and case law have accepted the enactment of the provision of Article 24 by the constitutional legislator as going beyond expectations as regards the institutional support and entrenchment, as far as possible, of the system for protecting environmental assets.
Drawing on the long-standing case law of the Council of State, with Decision No. 10/1988, the concept of “acquired urban planning status” was formulated. This decision clearly established the position that the residential environment constitutes a constitutionally protected value, which requires the ordinary and regulatory legislator to regulate the spatial organisation and urban configuration of the country on the basis of rational spatial and urban planning, dictated by spatial and urban planning criteria, so that settlements are configured in a functional manner and ensure the best possible living conditions. In order to maintain the above criteria, in exercising its related regulatory competence, the State is required to take measures that contribute to the upgrading of the residential environment for the purpose of improving the quality of life, but is in any case prohibited from taking measures that bring about its deterioration. By this decision, the provisions of the GOK (1985), which provided for more favourable building terms in areas subject to the “free-standing on all sides” building system, were held unconstitutional.
In attempting to delineate the concept, “acquired status” is understood as the consolidation of the existing urban planning situation, which may be changed – whether legislatively or in fact – only when it is aimed at greater protection of the environment, or at improving the existing situation, or at improving the living conditions of citizens within urban planning wholes, or, in any event, at maintaining the existing balance of environmental protection or its equalisation. As has been held in case law, the improvement of the existing natural and residential environment, and its preservation and promotion, constitutes a fundamental rule and one of the primary objectives of the relevant planning, the improvement of which is one of the primary objectives of the relevant planning. Indeed, for the first time, with the Plenary Decision of the CoS 1071/1994, a relativisation of acquired urban planning status is recorded, since the necessity of establishing exceptions relating to the transfer of building ratios from the general building terms was recognised, while stressing, however, that these must be integrated into urban planning, must serve its objectives, and must be in harmony with its directions.
III. Historical framework regarding Building Regulations – International and European trends towards a shift in urban planning
The previous General Building Regulations (GOK) followed the trends of their time: the first (1973) defining a central city with peri-central areas, and the next (1985) “multiple centres” of the city. Through the implementation of the NOK, and with the aim of meeting today’s critical needs, the perception was cultivated of the need to change urban planning habits and adopt new practices that would lead to a slowdown in climate degradation, an improvement in the costs of using buildings, and an improvement in the social parameters related to the built environment. The aim of the new NOK was to keep pace with international and European developments in urban upgrading and bioclimatic design, adopting a modern vision in terms of architecture and one protective of the natural and urban environment.
International and European Policy
The most significant initiative undertaken to identify the challenges facing humanity and to promote solutions has been the determination and implementation of the Sustainable Development Goals, at a global level. Among these goals is the initiative for Sustainable Cities and Communities (Goal 11), according to which cities must become safe, resilient, and sustainable, leaving no one behind. On 11 December 2019, the European Green Deal was presented, the long-term goal of which – which is based on the European Union’s relevant commitment under the 2015 Paris Agreement on climate – is to make the European Union climate neutral by 2050, that is, an economy with zero greenhouse gas emissions. In this connection, for cities, the Buildings Performance Institute Europe places the issue of buildings at the centre of the problems that need to be addressed through the European Green Deal, for a series of environmental, social, and economic reasons. Indeed, one of the policy areas proposed by the European Commission is “building and renovating buildings in an energy-efficient way,” while, according to Eurostat data, buildings account for 40% of energy consumption in meeting energy needs.
Also, the European “Renovation Wave” strategy, presented in October 2020, sets out measures aimed at more than doubling the rate of energy renovations by 2030, while already, under Law 4122/2013 (transposing EU Directive 2010/31 on energy performance), an obligation had been expressly established for all new buildings, from 1.1.2021, to be nearly zero-energy buildings, while for new buildings owned by the State and the wider public sector, this obligation took effect from 1.1.2019.
The contribution of the building sector to addressing environmental problems, by reducing emissions that cause climate change, to energy saving, and to the use of Renewable Sources thus becomes extremely important – at the same time, internationally, there is a continuous trend towards increasing green common-use spaces and improving the microclimate in high-density urban areas, as well as in degraded or problematic areas of the city. The provision of greater freedom for the production of quality architecture – both morphologically and functionally – the incorporation of elements that can upgrade the energy performance of buildings, and the use of new environmentally friendly building materials, systems, and construction technologies, are the main contemporary trends in urban planning.
In general, the built environment must now be adapted to the new circumstances arising from the impacts of climate change and the increased need for environmental protection. In the centres of large cities, and in areas where the character of the area is not altered, the consolidation of plots for the creation of building volumes with less fragmentation and greater scale and height, in conjunction with the width of streets, the open spaces of the city, and the distances between them, affects air movement and brings about an improvement in the microclimate in high-density areas, improving thermal comfort and contributing to the dispersal of gaseous and particulate pollutants. Thus, the legal framework, starting with the NOK in 2012, began to support the incorporation into buildings of new materials, technologies, and building systems, and to incentivise design with environmentally friendly criteria for the benefit of society and the environment, following international and European directions. At the same time, it allows significant new possibilities, taking into account the energy footprint of buildings, with objectives mainly being the improvement of the microclimate in high-density urban areas, the increase of available green spaces, and of spaces made available for common use.
In view of European climate-neutrality policy by 2050, recent energy crises, and the “shift” of international and European urban planning towards new building models, it is considered necessary for national legislation to “move in step” with criteria that have already gained ground in the European context (Bioclimatic Design, extension in height, urban parks/groves, allocation of spaces for common use, among others), with the ultimate result being the actual adoption and implementation of these new practices in the Greek context as well. In other words, adherence to outdated, conservative design models is beginning to be discouraged, and a “shift” towards modern sustainable urban planning practices is being promoted.
IV. On paragraph 5 of Article 1 of the NOK – The more specific regulations of Laws and Decrees in relation to the regulations of the NOK
In light of the above, the question arose of legislative provisions or provisions through Presidential Decrees more specific than the NOK, which introduced urban planning specifications different from those of the NOK. In this connection, Article 1(5) of the NOK provides that:
“(a) Special urban planning provisions, subject to the next paragraph, take precedence over the general provisions contained in this law. (b) The provisions of this law take precedence over the regulatory acts of the Administration (such as decisions of the Prefect, acts of the Municipal Council, etc.) by which building terms are established (such as height, coverage ratio, number of floors, position of basement, etc.), except for: 1) decrees of any kind, and 2) acts establishing special and localised regulations (such as for listed buildings, monuments, special buildings, etc.). By decision of the Minister of Environment, Energy, and Climate Change, the non-application of the above regulatory acts of the administration may be determined.”
This article constitutes an application of the principle of the more specific regulation prevailing in each case, with the special law prevailing over the general. This provision established the general rule that more specific urban planning provisions (understood as having the force of a formal rule of law) prevail over the general regulations of the NOK (subject to the exceptions in subparagraph (b)). This means that, if a law or a Presidential Decree issued under legislative authorisation sets out an urban planning provision that overrides the general regulations of the NOK, that provision prevails, on the basis of the rule of specificity (lex specialis).
Accordingly, on the basis of an express reference in the NOK, Laws or Presidential Decrees may set special building terms and restrictions, which prevail over the general regulations of the NOK, on the basis of the principle of specificity.
Two more specific articles falling within this category, and which therefore introduce more specific regulations than the NOK that prevail over its more general provisions, are Articles 10 and 25, by which the legislator sought to promote urban transformation, energy upgrading, and urban regeneration in Greece.
1. On Article 10 of the NOK
The incentives established by Article 10 of the NOK concern, as indicated by the title of the article, “environmental upgrading and improvement of the quality of life in densely built and urban areas.” That is, they concern specific areas with strict population criteria, so as to confirm their “densely built” character. This article provides an incentive of a percentage increase in the permitted building ratio of the relevant plot, subject to a percentage reduction in the permitted coverage ratio of the plot and the allocation, for common public use, of a surface area equal to the increase in building floor area resulting from the building ratio – that is, the conferral of this urban planning incentive must result in an improvement in living conditions. The provisions are therefore entirely consistent with the Constitution (Article 24) and the related case law of the Council of State on “environmental and urban planning acquired status,” which requires that, in the event of a change in building terms, an improvement in living conditions must result (cf. CoS Plenary 4946-4948/1995), in which it was held ad hoc that: “no deterioration (i.e. of living conditions) is brought about even by the amendment of building terms, since the increase in the building ratio (0.8 as against 0.6 previously in force) is offset by the increase in uncovered space, while the building term concerning height does not, in itself, constitute an unfavourable change in conditions.”
The more specific character of this legislative provision is also evident from the wording of Article 10 itself: “In any event, an incentive is given of an increase in the permitted height, up to the maximum permitted height under Article 15, for the increased building ratio. Where the height is determined by special urban planning provisions in force in the area, an incentive is given of an increase in the permitted height by…”
This more specific choice by the legislator, as permitted by Article 1(5) of the NOK, is therefore fully justified on the basis of the broader policy of slowing climate stress, improving the costs of using buildings, and promoting environmental and social issues related to the built environment.
The density of buildings, their position on the plot, the manner in which building volumes are developed, their poor relationship with the widths of streets, and the lack of open private and common-use spaces, are among the main causes of environmental degradation of the city.
With this article of the NOK, not only is an already burdened urban environment not further degraded, but, on the contrary, it becomes possible, in studies for new buildings, to apply modern construction principles aligned with new findings and provisions for environmental protection and for conferring a benefit on society as a whole.
From the consolidations of plots that will result from the granting of the above incentives, a benefit arises for the quality of daily life, the environment, the aesthetic image of the city, and architecture. Under these terms, the proposed increase in the building ratio is accompanied by a limitation of the environmental footprint of construction, and therefore does not constitute a deterioration, but an improvement in the quality of living and the quality of the environment.
2. On Article 25 of the NOK
In the same spirit as Article 10 of the NOK, Article 25 establishes an incentive of an increase in the building ratio for buildings which, through their bioclimatic and energy design, require the minimum possible energy consumption, using energy-saving systems as well as RES systems, or which simultaneously demonstrate exceptional environmental performance. The height of a building, in itself, does not burden the environment, all the more so where it is characterised by bioclimatic design and is accompanied by a reduction in the coverage permitted in the area for the plot.
In any event, it should be noted that height, as a building term, does not in itself constitute an unfavourable change in conditions, particularly when offset by an increase in the uncovered area of plots – with the result, as also stated in the aforementioned explanatory memorandum to the NOK, that air flow is increased, thermal comfort is improved, and gaseous and particulate pollutants are dispersed. The limitation of the environmental footprint of construction thus constitutes a scientifically documented improvement in the quality of living and the quality of the environment, as provided for in Article 24 of the Constitution, and therefore does not conflict with the character of acquired urban planning status as regards the non-deterioration of living conditions within urban planned areas.
V. Conclusions
In view of the above, we codify our conclusions as follows:
- the rules of the NOK are general, concern the entire Territory, and apply in a supplementary manner, and only as regards matters not expressly regulated by the special urban planning/street-alignment provisions applicable in each case, on the basis of the express provision of Article 1(5) of the NOK.
- the rules of Articles 10 and 25 of the NOK are more specific than the general provisions of the NOK, as demonstrated by a reading of these provisions.
- through these more specific provisions of the NOK, more specific, optional urban planning incentives are given (increase in the building ratio in densely built areas, greater building height accompanied by lower coverage): 1) in areas where there are no special restrictions, 2) in accordance with a specific procedure, 3) subject to more specific, restrictive, and strict conditions, and 4) applied ad hoc – a choice which has been scientifically documented as not, in itself, bringing about an environmental burden, but, on the contrary, serving to improve living conditions.
- due to its specialised character (as above), the urban planning incentive of the more specific articles of the NOK gives effect to the directions and specifications of modern cities based on the international and European framework, which has for many years required urban regenerations of this kind, with bioclimatic design, extension in height, and allocation of spaces for common use.
As has been held, the determination of permitted land uses, on which the quality of life in the city depends to a significant degree, must be carried out rationally, in accordance with urban planning criteria and for the public interest. This in no way means that the use of established urban planning incentives is not permitted; rather, the respective regulations must be based on objective, scientifically determined urban planning criteria, and must be aligned with the core of the concept of acquired urban planning status, in light of the non-deterioration of citizens’ living conditions and the protection of the natural and urban environment.
In accordance with the above analysis, by establishing special urban planning provisions on building heights under the above conditions, it becomes clear that the acquired urban planning status and the character of the area concerned are not a priori altered, nor is rational urban planning, as required by Article 24 of the Constitution, negated.
VI. By way of conclusion
Through this intense ongoing debate, the necessity certainly emerges for a substantive and in-depth discussion among the technical community, and architects in particular, on the future of densely built areas and the extent and degree of the planned changes – possibly also for the re-examination and codification of all the relevant articles in relation to the configuration of the urban planning parameters provided for in the Building Regulation. It is clear that this intense debate may serve as a starting point for research and revision of the provisions concerning the calculation of the building ratio and the increase in building height, so as to ensure, on the one hand, that the country does not lose the opportunity to align with the new directions on energy upgrading and bioclimatic design in the international environment, and, on the other, that it becomes clear where the limit lies up to which there is genuinely assurance that acquired urban planning status, and the aesthetics and character of cities as they have been formed, will not be overturned.
In this direction, a codification of the provisions affecting the height of buildings, possibly also through diagrammatic representation, would, we believe, highlight the positive aspects of the NOK and would substantially assist, should it be considered necessary to re-examine some of its provisions, in their correct and scientifically documented amendment.
One important final remark: a systematic reading of the many provisions applied to the realisation of a building forms a particularly technical web, within which the weighing of all the issues that arise becomes difficult for those applying and interpreting it – among others, the Court. In any event, the Council of State, through its long case law, has played anything but a conservative role, having protected changes moving in the right directions. Ultimately, most issues are not only technical but require cross-examination and parallel research, since one provision of the NOK may affect the legal dimension of the assessment of another.
[1] Karatsolis K. (2020), Introduction to Urban Planning Law in Greece and Cyprus, Nomiki Vivliothiki, p. 1.
[2] Which were based on CoS Decisions 2102/19 and 705-706/20, in which the supreme annulment court held that, where special decrees exist, these must be applied, and not the provisions of GOK 1985 and NOK 2012.
[3] Law 4067/12, Official Gazette A’ 79/09.04.2012, corrigendum in Official Gazette A 99/27.4.2012.
[4] Karakostas I., “Environmental protection as a non-negotiable legal and social acquis,” 2007, Nomos kai Fysi.
[5] Such as the particularity, the character of an area as a city, suburb, or village, and its general character, as well as the needs of each area.
[6] See related more recent case law: CoS Plenary 3746/1995, 1260/1999 (seven-member panel), Plenary 376/2014, PE 28/2015, 1159/1989, 1111/2003, 2808/2004, 2181/2005, 2712/2006.
[7] Similarly held in CoS 643/1988, 941/1988, 948/1988, 3618/1995 (Plenary), 2252/2002.
[8] See also CoS 3478/2000, CoS 554/2000, CoS 6070/1996, CoS 4572/1996, on the basis of which amendments are tolerable only if they improve the urban planned space, or if they at least ensure the existing situation (function) of the area.
[9] See CoS 2258/2014, 4031/2001, 1027/1999, 557/1999, 1507/1997, among others.
[10] See Buildings Should Be At The Heart Of The European Green Deal. Here’s Why. Discussion Paper, Buildings Performance Institute Europe – BPIE, Brussels (2019)
[11] Eurostat, Energy balances, 2019 edition – final energy consumption in 2017: https://ec.europa.eu/eurostat/documents/3217494/10077623/KS-EN-19-001-EN-N.pdf/59b44e6f-ff33-488b-a85f-9c4f60703afc
[12] The relevant percentage globally continues to increase, mainly due to the growth of the population and of the built surface area of the planet (2018 Global Status Report, Global Alliance for Buildings and Construction – GlobalABC)
[13] CoS Plenary 1166/1951 noted precisely that, in the case of “conflicting and concurrently applicable rules of law, the intention of the legislator is sought on the basis of the criterion of the general versus the special rule, with the latter prevailing,” a rule that has run throughout national case law over time.
[14] CoS Plenary 4946-4948/1995.
[15] CoS 4974/2013, 3176/2008.
[16] CoS 1242/16, reasoning para. 6