Konstantinos Karatsolis, Lawyer, PhD Candidate

Study and Documentation Team: Ioanna Vasilopoulou, Lawyer, LLM Athina Michalakea, Lawyer, LLM, PhD Candidate Ifigenia Tsakalogianni, Lawyer, LLM, MSc

I. Foreword

The aim of this study is to highlight the elements which, according to the Council of State (from 1992 onwards), constitute critical magnitudes for determining Carrying Capacity (hereinafter CC), and which could be recorded as basic parameters for its assessment, on the basis of the directions of the Supreme Court of Annulment. We consider the choice of sample to be of exceptional importance for the soundness of the conclusions presented.

II. The assessment of CC according to the Council of State

First, by virtue of the study and codification of the decisions and Preparatory Opinions of the CoS, and the recording of references to the assessment of CC, the conclusion emerges that the above can be systematically entered into certain categories, from which criteria and data can be drawn for creating specifications and criteria for assessing CC:

A.1. Settlements and Settlement Expansions

A large number of CoS decisions refer to CC as an element for assessing the satisfaction of residential needs, which are either absorbed by existing settlements or served by expanding settlement boundaries or creating new ones.

Systematic analysis shows that, in this case, the following must be examined:

(a) the capacity of existing settlements to absorb residential pressures (PE CoS 196/2021, CoS 164/2022), for which the following are taken as elements for assessing CC, according to the CoS:

  • the population burden
  • the criteria relating to new residential receptors provided for by urban/spatial plans (e.g. GUP)
  • the road network
  • the capacity of the water supply network to serve the expected population and new settlements, without overexploitation of water resources.

(b) the protection of “cultural capital”, for which the element taken, according to the CoS, for assessing CC is the non-alteration of the urban character of the residential area (indicatively, CoS 585/2014), and

(c) the non-exceedance of the natural capacity of the residential area, for which the elements taken as assessment criteria for CC are:

  • the protection of natural resources, and
  • the capacity of technical and social infrastructure (indicatively, CoS 1037/22).

A.2 Specifications for the island ecosystem

Specifically for small islands, it is settled case law of the CoS that they are capable of accommodating only forms of gentle development, compatible with their sensitive character. In other words, the fundamental rule of sustainable development requires rational spatial and urban planning, and applies all the more so to the protection of sensitive ecosystems such as small islands (CoS 3920/2010, CoS 387/2014). Accordingly, the carrying capacity of small islands is a magnitude that must be assessed with particular care in the studies to be prepared.

From the case law of the CoS it can be seen that, for calculating the CC of small islands, the assessment factors are: (a) the multiple uses of the indigenous resources of small islands, and (b) the protection and maintenance of their biodiversity.

In addition, CC may be assessed, indicatively, according to the CoS, in the following ways:

  • Determination of CC in long-term and medium-term sustainable development plans, with particular emphasis on: (a) revising unsustainable practices, (b) promoting environmentally sound technology, and (c) excluding technologies that pose a threat to their ecosystem (indicatively, PE CoS 216/1999, PE CoS 355/1999).
  • Calculation of the measure for maintaining biodiversity for each island and development of new technologies for this purpose (indicatively, PE CoS 359/1999, PE CoS 432/2001).
  • preparation of a special “capacity” study (i.e. the special spatial planning tool provided for by the South Aegean Regional Framework in this specific case, see CoS 1037/2022).

Finally, it has been held that a key factor for determining the limits of CC on small islands is their energy system (see CoS 1421/2013, CoS 1422/2013).

B.1. Approaches to CC in other/specific sectors of activity

In researching decisions and Preparatory Opinions of the CoS, it was found that the assessment of CC is considered a necessary element for the approval of Special Spatial Development Plans for Strategic Investments (ESCHASE) and Special Spatial Development Plans for Public Properties (ESCHADA), but also for the approval of the creation of waste-management receivers (OEDA – Integrated Waste Disposal Facility), Integrated Aquaculture Development Areas (POAY), and RES installations. Indeed, the case law of the CoS appears to assess the element of CC differently for the installation of RES on small islands compared to their installation on the mainland.

B.2. Cumulative effects of activities – Synergistic effect

In the majority of decisions of the CoS concerning industrial activities, waste management facilities, transport projects, or production activities, it was held that, in assessing CC, the impacts that any new installation might have must also be examined, given the cumulation with existing uses and installations of the same uses. In addition, the CoS has repeatedly noted that, for assessing CC for waste management units (OEDA), industries, livestock farming units, and migration reception facilities, account must be taken of the cumulative impacts on the natural and human-made environment from the parallel operation of such units, focusing on the cumulative effect of corresponding nuisances of different types in the area concerned[1]. Similarly, the potential cumulative harmful effect of similar installations[2] from the simultaneous operation of installations[3] has been noted.

III. The place of the definition of CC in rational planning and its field of spatial analysis

Carrying capacity is an element and criterion that must be included, among other things, in spatial and urban planning[4].

CC is a dynamic tool, assessed at different levels of spatial planning and spatial unit, depending on various factors, such as the type of intervention concerned, the conditions of the area concerned, the particular local, natural, cultural, and urban planning characteristics, etc.

As a rule, however, point-by-point and fragmented siting of projects and activities must be avoided, since this is contrary to the carrying capacity of the area[5].

IV. Conclusions of a theoretical nature

  • The elements taken into account for calculating sustainable development should also be taken into account for calculating CC, since, often in the case law of the CoS, these two concepts coincide[6].
  • Sustainable residential development consists primarily in the revitalisation of the country’s settlements that are declining or being abandoned, towards which development activity should be directed[7].
  • CC is also combined with non-quantitative criteria, such as the character of islands as traditional human systems and the status of areas as sensitive ecosystems. The magnitude of CC must therefore also be examined from this perspective. In particular, special care must be taken to preserve the character of small islands and their island human-made and natural environment and landscape[8].
  • The calculation and assessment of CC constitute a basic criterion for the rational control of land uses[9].
  • Changes or increases in urban planning parameters (e.g. an increase in the building ratio) affect CC and must therefore take it into account[10].
  • CC concerns a broad field of activities, including, among others: tourism, energy, the primary sector, aquaculture (POAY), industry, etc.

The majority of decisions converge on the view that CC is an urban planning criterion, which is taken into account in spatial and urban planning.

First published:

ECOPRESS: https://ecopress.gr/i-ferousa-ikanotita-mesa-apo-ti-nomolo/

APE-MPE: https://www.amna.gr/home/article/747799/Ferousa-Ikanotita-Apo-tin-uperdomisi-ton-nision-kai-ti-spatali-fusikon-poron-sti-biosimi-anaptuxi

[1] CoS 902/2011, 1531/2014

[2] 380/2014, 1973/2017, 1678/22.

[3] CoS 273/2019

[4] Indicatively, PE CoS 246/1992, 140/2002, 114/2010, 199/2010, 178/2019.

[5] PE CoS 194/2011.

[6] Indicatively, PE CoS 210/2002, 388/2003, 87/2020.

[7] PE CoS 527/2001, 535/2002.

[8] PE CoS 210/2002, 87/2020.

[9] PE CoS 120/2002, 159/2002.

[10] PE CoS 601/2002.