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Konstantinos Karatsolis, Lawyer, PhD Candidate, Environmental and Urban Planning Law

Ifigenia Tsakalogianni, Lawyer, LLM, MSc

Ioanna Vasilopoulou, Lawyer, LLM

First published: “To Syntagma” journal, 2/2023, Sakkoulas Publications

I. The concept of the city and planning

The city, large or small, is the organised space in which human beings live and carry on their activities. The definition of the concept of the city is not absolute and static, but constantly evolves, reflecting on each occasion the conditions and circumstances of the space to which it refers, as well as the value choices of the society to which it belongs.

At a theoretical level, already since antiquity, the words “polis” and “politis” (citizen) had primarily ideological content. According to Aristotle, the creation of cities is bound up with human nature and reflects the individual’s need for socialisation. Beyond being the birthplace of commercial exchange, the city is also the space of the agora (forum), that is, the space of dialogue, critical thought, and institutionally organised coexistence. The city belongs to people both as individuals and as members of the social whole, thereby constituting the tangible imprint of the effort of heterogeneous individualities and collectivities to shape 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. It is certain that, whatever the specific content attributed to the concept of the city on each occasion, the constituent element that always characterises it is the human being and their dignified living within it.

The way in which a city is structured reflects not only the existing needs of its citizens (housing, professional activity, access to public utility services, etc.), but also the system of values that each State chooses, and the priorities it sets. It is clear that the aim of the city is – or at least should be – to achieve a high standard of living for its citizens, which depends directly on its infrastructure, on the layout and planning of its built and unbuilt environment, and on the (qualitative and quantitative) relationship between private and public space.

Spatial planning is not a purely technical process but also a social activity with political and economic dimensions, which simultaneously involves the element of forecasting and arranging future situations. For planning to be effective and to lead to the adoption of optimal choices on each occasion, it must be rational. Rational planning includes, among other things, the collection of large amounts of data, the creation of background studies, complex study procedures, consultation, controls, and institutionalisation procedures, developed over a period of years. In particular, urban planning constitutes a fundamental tool for regulating urban and peri-urban space, with its main concerns being the social welfare and economic development of citizens, their access to basic services and infrastructure, and the health and safety of cities. It follows, therefore, that urban planning, as a process of data processing and balancing, is of decisive importance for ensuring better living conditions, upgrading the quality of life, and protecting the natural and cultural environment within the boundaries of the city. To this end, characteristic examples of modern rational planning processes are the Climate Pact and the Covenant of Mayors, which have begun to appear in the European sphere and incorporate the climate dimension into urban planning.

II. Urban planning in Greece – Historical overview and institutional framework

The Greek Constitution, already at the time of its enactment in 1975, contained an express provision on the spatial and urban planning of the country, in Article 24(2), according to which “The redevelopment of regions and the planning, development, expansion, and improvement of cities and residential areas generally, shall constitute an obligation of the State, to be carried out within the framework of a general plan, in order to serve the functionality and development of settlements and to secure the best possible living conditions.” During the 2001 revision, a sentence was added to the above paragraph, according to which “The relevant technical choices and weighing of considerations shall be made according to the rules of science.”

Urban planning is thus entrusted to the State and is carried out on the basis of criteria aimed at creating a residential environment suitable for the qualitative and creative living of its inhabitants. The case law has held that this constitutional provision addresses requirements to the organs of the State to regulate the spatial development and urban configuration of the country on the basis of rational planning, dictated by urban planning criteria, in accordance with the particularities, character, and needs of each area. It follows, therefore, that spatial planning (whether territorial or urban) must be the product of logical thought and method, that is, rational design, and must be based on the principles and findings of the relevant sciences. In this context, urban planning aims at creating a sustainable urban environment, ensuring healthy housing and working conditions, and satisfying the housing needs of the population, as well as the needs of the economy.

It is worth noting that, by virtue of Article 24(2) of the Constitution, the Council of State has, through its case law, developed the principle of acquired urban planning status (“poleodomiko ktimeno”), first formulated in its Decision No. 10/1988, and since then, as deriving from a constitutional provision, constituting a constitutional principle. According to this principle, the ordinary legislator, subject to the limited review of the annulment court, may amend existing urban planning regulations only in the direction of improving the living conditions of inhabitants, while any amendments entailing their degradation are held inapplicable as unconstitutional. Within the framework of the prohibition on the deterioration of living conditions in the city, the principle of compensation is also of importance – also known as the “green for green” principle – according to which a local degradation of the (residential) environment is tolerable only if it is offset by a simultaneous and corresponding improvement within the same residential whole. The ultimate aim is to ensure that the overall quality and balance of the environmental and residential system is not overturned, and that the level of living conditions is not degraded.

In contrast to the analysis above, urban planning in Greece has not always been the result of assessing scientific data and weighing rational criteria. This is due both to objective difficulties faced by the country since the establishment of the Greek State, and to inherent and chronic pathologies of the Greek Administration, which persist to this day.

To begin with, the history of Greece is full of political circumstances and social needs which, while affecting urban planning, required immediate action and decisions. For example, the political and economic instability of the 19th-20th centuries was the main reason that discouraged investment in productive sectors and turned investment interest almost en masse towards the construction sector, while plans for green spaces were largely not adopted, mainly because of the prevailing view of ownership that such spaces would fragment property. Furthermore, the urgent need to house refugees after the Asia Minor catastrophe resulted in the creation of a multitude of dwellings that did not always meet the requirements for the healthy and safe living of inhabitants, and the transformation of neighbourhoods into unplanned, chaotically built districts. At the same time, the progressive and generalised use of concrete in the construction sector steadily facilitated and promoted the construction of multi-storey buildings. This was reinforced by the enactment of Law 3741/1929 (Official Gazette 4/A/9.1.1929), which permitted horizontal ownership and the vertical division of buildings, leading to the first apartment blocks and the development of the “antiparochi” (land-for-apartments exchange) institution, with the natural consequence of increased urban density. After the Second World War, the basic problems Greece faced were the extensive destruction of the housing stock and infrastructure, rural depopulation, and rapid urbanisation. In this context, unauthorised construction became the main lever for solving the housing problem around urban centres, particularly Athens, whose urban fabric expanded significantly during that period without scientific evidence or strategy.

The above are just some examples of the historical and social conditions that influenced the formation of cities without integrated or fully rational planning. These were compounded by the longstanding lack of an effective mechanism for monitoring and enforcing compliance with urban planning regulations, a fact that favours the development of evasive behaviour by citizens. This situation is also reinforced by the fragmentation of urban planning regulations, as well as by the proliferation of legislation that justifiably creates legal confusion. Often, the applicable urban planning framework is unclear even to the Administration itself, resulting in erroneous decisions or abstention from any decision. It is clear that, under the framework described above, the purpose of rational planning of the city and ensuring dignified living for its inhabitants is in no way fulfilled. Thus, the state dysfunction described above, given the need for immediate and drastic solutions for cities in the context of climate change, widens the gap between the constitutional requirement for rational planning and the need – the right – of citizens to dignified living.

From the point of view of the institutional framework, as also noted above, urban planning in Greece is governed by a complex regime consisting of a multitude of pieces of legislation, which either concern separate and different issues, or identical urban planning matters, in which case the various pieces of legislation function in a complementary and supplementary manner to one another. The most important pieces of urban planning legislation are: Legislative Decree of 17 July 1923 “On plans of cities, towns, and settlements of the State and their construction” (Official Gazette 228/A/16.8.1923), which constituted the first official recognition of the necessity of developing cities on the basis of a plan; Law 947/1979 “On residential areas” (Official Gazette 169/A/26.7.1979), which was not substantively applied; Law 1337/1983 “Expansion of urban plans, residential development, and related provisions” (Official Gazette 33/A/14.3.1983), by which the principle of two-level urban planning was provided for the first time; Law 2508/1997 “Sustainable residential development of the country’s cities and settlements and other provisions” (Official Gazette 124/A/13.6.1997), which functioned as a complement to the provisions of Law 1337/1983; and Law 4269/2014 “Spatial and urban planning reform – Sustainable development” (Official Gazette 142/A/28.6.2014).

Today, the urban planning framework is governed by Law 4447/2016, “Spatial planning – Sustainable development and other provisions” (Official Gazette 241/A/23.12.2016), as amended and in force. The basic first-level urban planning tools, according to this law, are Local Urban Plans (LUP) and Special Urban Plans (SUP). Both these categories of plans consist of sets of texts, maps, and diagrams. LUP and SUP are hierarchically equal planning tools, but with different objectives and fields of application. LUP have, as their field of application (study area), one or more municipal units of a municipality, or an area of municipal units located in neighbouring municipalities. By contrast, SUP are drawn up for the purpose of the spatial organisation and development of areas, irrespective of administrative boundaries, which may serve as hosts for plans, projects, and programmes of supra-local scale or strategic importance, for which a special regulation of land uses and other development terms is required.

III. International developments and national urban planning

Urban areas host more than 50% of the world’s population and are the place where the largest share of economic activity is concentrated, and where construction mainly develops. The United Nations projects that 68% of the world’s population will live in urban areas by 2050. At the same time, however, urban areas are characterised as particularly vulnerable to the impacts of climate change and environmental degradation, while the expected increase in urban population will intensify greenhouse gas emissions from cities. Indeed, without deliberate urban planning interventions, it is estimated that the expected increase in urban areas in the first thirty years of the 21st century will exceed the increase recorded throughout the whole of human history, with consequent impacts on greenhouse gas emissions. These forecasts suggest that climate change, urban lifestyles and overconcentration in cities, the dramatic degradation of the environment in various ways, and the presence of new technologies and building systems should gradually and decisively lead to the adoption of new provisions and incentives for the extensive (re)construction of urban infrastructure and buildings and the development of buildings in urban areas.

Thus, 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 this light, a characteristic example of the trade-offs and choices made in shaping a city is the existence of public and open spaces and green spaces. Public space confirms the values to which every society appeals – even when this is not conscious – ensures quality of life in the urban environment, and provides an incentive for productive social interaction.

On 11 December 2019, the European Green Deal was presented, the long-term goal of which is to make the European Union climate neutral by 2050. 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- and resource-efficient way,” as a key sector for transformation in order to achieve climate neutrality.

It is clear that perhaps the greatest challenge facing modern urban planned developments is ensuring a quality, balanced, and satisfactory environment within the urban fabric for housing, work, and leisure. In managing these findings, the national legislator, understanding the scale of the challenges facing modern urban societies in view of urbanisation, the reduction of green spaces, and the impacts of climate change, gradually introduced new regulations in the field of urban planning law. Understanding the importance of the strong constitutional requirement for rational planning, and aiming to bridge the gap between the requirement for cities to change and the slow administrative machinery, it proceeded with some substantial legislative changes, aimed at improving living conditions in cities and creating a more sustainable and dignified built environment.

In this context, and in line with international and European developments, the New Building Regulation (NOK), following amendments and additions, contains new possibilities and incentives, focusing on the consolidation of plots, the energy footprint of buildings, the use of their envelope, and the creation of common-use spaces – not only as an element of aesthetic configuration, but as a means of achieving “green behaviour.”

According to the explanatory memorandum to the NOK, “urban morphology” – that is, the form of buildings and the spaces they create – is one of the main factors shaping the microclimate, and its alteration can locally modify atmospheric conditions, bioclimatic parameters such as ambient temperature and humidity, wind speed and direction, and the radiation balance, thereby affecting the thermal and visual comfort of an area. Specifically, with regard to high-density urban areas, targets are set and incentives are provided for improving the microclimate and increasing green spaces and spaces available for common use. This new logic, and the objectives that, in the Greek legal order, underpin the NOK’s provisions, are translated into environmentally friendly provisions – “pillars” – which mainly concern the building ratio, parking, the increase of green space, and design based on bioclimatic criteria.

Studying the new legislative provisions, the following questions arise:

• Is the legislator’s newly proposed planning in harmony with the constitutional requirement for rational urban planning?
• Do the new provisions of the NOK substantially improve citizens’ standard of living?
• Do they raise concerns as to the alteration of areas and neighbourhoods, or do they constitute a necessary precondition for the evolution of the city in view of the path towards climate neutrality?

In view of these questions, it becomes necessary to systematically record, analyse, and codify the most important provisions of the NOK. From this, it clearly emerges that the basic “beacon” provisions, grouped according to its explanatory memorandum, are as follows:

A. Building ratio, consolidations, and reduction in height

Under Article 10 of the NOK, an incentive is established, as indicated by the title of the article, for “environmental upgrading and improvement of the quality of life in densely built and urban areas.” Specifically, in certain densely built in-plan areas, an incentive of a percentage increase in the permitted building ratio of the relevant plot is given, subject to: (a) a percentage reduction in the permitted coverage ratio of the plot, and (b) 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, in order for this incentive to apply, it must be ensured, on the one hand, that there is a reduction in coverage – i.e. in the area that may be covered by construction – and, on the other, that an area of the plot is allocated for common, public use, so as to achieve “an improvement in the quality of life” of those concerned and of neighbouring residents. It follows clearly from this that the legislator links this incentive and its conditions to an upgrading of the living conditions of inhabitants, or rather to the conferral of a benefit on the community as a whole. In addition, the law provides for these incentives to also apply to plots resulting from consolidations, with the aim of developing more cohesive and functional building volumes.

Article 10A of the NOK provides for the possibility, following a decision of the competent body of the Ministry of Environment and Energy, issued following the opinion of the Architecture Council, of demolishing floors or whole buildings, taking into account the reduction of the urban heat island effect, the visual coherence of the urban area, and the morphological coherence of the urban whole at street or neighbourhood level – in other words, the liberation of the “urban landscape.”

B. Parking and increase of green space – planting

Similar provisions are found in paragraph 8 of Article 15 and in Article 18 of the NOK, according to which the construction of planted surfaces on rooftops, roofs, and outdoor areas is permitted. In addition, an increase in the maximum permitted height is permitted in cases where the ground floor of the building is used to a percentage of at least 50% for vehicle parking (subparagraph (a) of that paragraph). Through these possibilities, the legislator aims to address the parking problems of particularly small plots and to improve the microclimate through increased greenery, while, with a focus on planting as much as possible of all the free surfaces of the building, paragraph 2 of Article 19 extends their further development also to outdoor areas of the building, recesses, and balconies.

C. Bioclimatic and energy design

In the same spirit, seeking to reduce urban pollutants generated by the energy needs of buildings, Article 25 establishes an incentive of an increase in the building ratio for buildings which, through their design, require the minimum possible energy consumption, using energy-saving systems and RES systems, or which simultaneously demonstrate exceptional environmental performance. The limitation of the environmental footprint of construction thus constitutes, according to the legislator, an improvement in the quality of living and the quality of the environment, as provided for in Article 24 of the Constitution.

IV. Directions towards a new understanding of “dignified living” – Conclusion

In view of European policy towards climate neutrality, recent energy crises, and the “shift” of international and European planning towards new urban planning “models,” it is ultimately considered necessary for national legislation to “move in step” with criteria that have already gained ground in the European context (such as bioclimatic design, the extension of buildings in height, the increase of urban parks/groves, and the allocation of spaces for common use, among others). The final result should be the actual adoption and implementation of these in the Greek context as well – and not only in isolated cases of specific SUPs or development models, such as the enormous Hellinikon project, but across construction as a whole, whether new or existing, as far as possible (e.g. through energy upgrade/renovation interventions).

To this end, a clear and coherent legislative framework is required, in order to substantively address issues that remain unclear or disputed. In this context, the codification and updating of urban planning regulations is necessary, in compliance with the principles of good legislation, so as to avoid further fragmentary regulations. For example, the provisions of the National Climate Law on reducing emissions from buildings are limited to fragmentary regulations, without substantive discussion of substantial interventions, or, in any case, without any correlation with the aforementioned incentives of the NOK. To this end, it would be considered appropriate to generally link and directly correlate, where possible, the principles of bioclimatic architecture with the existing relevant legislation when constructing new buildings or renovating existing ones.

Furthermore, as has been held in case law in developing the concept of acquired urban planning status, the improvement, preservation, and promotion of the existing natural and residential environment constitutes a fundamental rule and one of the primary objectives of the relevant planning. Until now, the principle of acquired urban planning status has been treated with considerable strictness by the Council of State, which has kept its content unchanged for thirty or more years. However, it is worth noting that, given the technological and scientific developments that have brought significant progress to the planning sciences, and in view of the demands imposed by the need to address climate change, it is now considered appropriate to re-examine and possibly reformulate the principle. More specifically, in order for the principle of acquired urban planning status to be aligned with the constantly evolving social needs of inhabitants and the functions of the city, it may, in certain cases, bring about a change to existing urban planning regulations that is apparently less favourable compared to the existing regime. This is a relativisation of acquired urban planning status, the results of which continue to satisfy, in a functional and effective manner, the needs of citizens. In any case, this relativisation must be documented by objective criteria and a special scientific study. After all, the institutional framework follows the needs of citizens, not the other way round. When these needs change, so too must the institutional framework. In this light, the concept of acquired urban planning status should be interpreted without rigidity, moving in step with developments at international, European, and national level, by which it should be enriched. Correspondingly, under the new circumstances, a modern conceptual definition of “dignified living” is considered necessary. The new concept must cover the need of contemporary humans for the city to change in terms of sustainability, energy neutrality, and climate resilience, without being limited to “mere” living, as understood until now.

At a broader level – that of the city as a whole – Greece’s large cities are characterised by a densely built, and often chaotically formed, urban centre, which makes life within it suffocating. The most characteristic example of all is the urban development of central Athens, often portrayed in negative terms, characterised as “unplanned,” “wild,” and “spontaneous.” The legal framework neither discourages out-of-plan construction, nor successfully promotes the creation of common-use spaces and green spaces. Although, formally, the Greek institutional framework provides adequate urban planning tools, the rational configuration and planning of the country’s cities is not guaranteed. For this reason, beyond recording and processing the technical and legal tools, we must understand what shapes this image of the city, so that we can redesign it. Certain basic criteria must be set for its assessment, which will arise from the particularities of each city, its needs, and its social priorities. A renewed understanding of the idea of urban planning is required, since, as has already been analysed, the city constitutes the place of life and action of individuals, the space for the exercise of their individual and collective rights. These elements must characterise new planning policies, which must aim at shaping cities suitable for quality and healthy living.

It is also necessary to modernise the public administration and staff it with specially trained administrative personnel who possess deep knowledge of the scientific and technical issues of planning. It should be noted that urban planning law is strongly dependent on science and technology, and its production and application require the cooperation of multiple specialties (lawyers, archaeologists, environmental engineers, etc.). In this context, interdisciplinary staffing of the competent state services is required, together with continuous training of their human resources, given the speed at which technology evolves.

Naturally, urban planning should not be treated as a matter to be studied and implemented by “detached” organs of the State – on the contrary, it is both the duty and the right of the citizen of the modern city to participate in the process of drawing up or amending the space in which they live. The participation of the interested public in the planning of their city is more relevant today than ever, in light of the increasing complexity of modern problems and the uncertainty arising from them. By building the city, human beings, in essence, redefine themselves, delineate the framework of social coexistence, and create a regulatory order for the environment in which they live. To this end, the education of citizens and the development of a culture of participation in urban planning decision-making become essential.

Urban planning and governance in matters of spatial planning and land use play a critical role in contemporary affairs, at the same time as the peak of the international debate on the sustainability of urban areas in the context of climate change. At the same time, the new understanding of the concept of “dignified living” must cover the need of contemporary humans for change towards a sustainable, smart, modern city. It thus becomes, ultimately, necessary to adapt both the building tools and the relevant legislative initiatives, so as to improve the quality of life of the modern citizen and to make it possible to speak of their substantively dignified living.

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[1] St. Kalogiannis, City plans and public space in the early years of the Greek State, Athens: Nomiki Vivliothiki 2023, p. 10, and J. Despotopoulos, La structure idéologique des cités, Athens: NTUA Press, 1997, p. 20.

[2] Excerpt from Aristotle’s Politics, Books VII-VIII, in which he analyses the ideal constitution: “it is therefore clear that the city belongs to those things that exist by nature, and that man is by nature a political animal.”

[3] Chr. Rammos, “The importance of the city and the difficult challenge of quality of life within it,” ThPDD 10/2016, p. 903 et seq. (903).

[4] K. Karatsolis, Introduction to Urban Planning Law in Greece and Cyprus, Athens: Nomiki Vivliothiki 2022, p. 1.

[5] For further definitions of the concept of a settlement, see, among others, A. Lagopoulos, History of the Greek City, Athens: Ermis Publications 2010, C. Doxiadis, Ekistics: An Introduction to the Science of Human Settlements, London: Oxford University Press 1968.

[6] The term is also rendered as “spatial planning.” For more on the concept, see And. Faludi (2000) The Performance of Spatial Planning, Planning Practice and Research, 15:4, 299-318, DOI: 10.1080/713691907.

[7] D. Christofilopoulos, Urban and Spatial Planning–Programming: Technical Process or Social Science, Athens: A.N. Sakkoulas 1990.

[8] According to Article 1 of Law 4759/2020 “Modernisation of Spatial Planning and Urban Planning Legislation and other provisions” (Official Gazette 254/A/9.4.2020), urban planning is “spatial planning by which rules and terms are set, through plans, for the use, construction, and general exploitation of land in urban and rural areas, and includes mainly regulations.”

[9] G. Giannakourou, Spatial and Urban Planning Law, Athens: Nomiki Vivliothiki 2019, p. 3.

[10] G. Giannakourou, Spatial and Urban Planning Law, pp. 20-21.

[11] See, among others, CoS 1567/2005, 3445/2007, 3944/2008, 3181/2009, 3337/2011, 1991/2017, and 1802/2021, as well as Sp. Vlachopoulos, Fundamental Rights, Athens: Nomiki Vivliothiki 2017, p. 219.

[12] P.M. Efstratiou, “The annulment of the city plan in Greek administrative practice,” Nomos kai Fysi, September 2003.

[13] Gl. Siouti, Handbook of Environmental Law, Athens: Sakkoulas Publications 2018, p. 190, and I. Karakostas, Environment and Law, Athens: Nomiki Vivliothiki 2011, pp. 219-220. Among others, see also CoS 10/1988, 4314/1990, 2397/2000, 4071/2015, 1802/2021, 1943/2022.

[14] See, indicatively, CoS 1310/193 and 2242/1994.

[15] D.N. Karidis (2014), Athens from 1456 to 1920: The Town under Ottoman Rule and the 19th Century Capital City, Oxford: Archaeopress, pp. 85-130.

[16] Em. Marmaras, The Urban Apartment Block of Interwar Athens. The Principle of Intensive Exploitation of Urban Land, Athens: ETBA Cultural Technological Foundation 1991, and A. Tsiligiannis (2020) “Why isn’t urban development sustainable? An institutional approach to the case of Athens, Greece,” Journal of Contemporary Urban Affairs, 4(1), 71-78. https://doi.org/10.25034/ijcua.2020.v4n1-7.

[17] G. Giannakourou, Spatial and Urban Planning Law, p. 65.

[18] And. Papapetropoulos, I. Kantartzi, Spatial and Urban Planning, Athens: Nomiki Vivliothiki, 2019, p. 19.

[19] And. Papapetropoulos, I. Kantartzi, Spatial and Urban Planning, p. 90.

[20] Articles 7 and 8 of Law 4447/2016 respectively.

[21] IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (AR5, WGII), Ch. 8.

[22] A. Bazaz et al. (2023) Summary for Urban Policymakers – What the IPCC Special Report on 1.5°C Means for Cities, DOI: https://doi.org/10.24943/SCPM.2018.

[23] Verisk Maplecroft (2021) Environmental Risk Outlook 2021.

[24] A. Bazaz et al. (2023) Summary for Urban Policymakers – What the IPCC Special Report on 1.5°C Means for Cities, DOI: https://doi.org/10.24943/SCPM.2018.

[25] K. Karatsolis, Introduction to Urban Planning Law in Greece and Cyprus, pp. 225 and 232.

[26] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee, and the Committee of the Regions, The European Green Deal, COM/2019/640 final.

[27] Buildings Should be at the Heart of the European Green Deal. Here’s Why. Discussion Paper, Buildings Performance Institute Europe – BPIE, Brussels (2019).

[28] Law 4067/2012 (Official Gazette 79/A/9.4.2012).

[29] Cf. CoS Plenary 4946-4948/1995, in which it was held that: “no deterioration [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.”

[30] If the building is classified, according to the Energy Performance Study, in the higher energy performance category of the Building Energy Performance Regulation (KENAK), approved by Joint Ministerial Decision DEPEA/oik.178581/30.6.2017 of the Ministers of Finance and of Environment and Energy (Official Gazette 2367/B/12.6.2017).

[31] Their environmental performance is documented using internationally recognised environmental assessment protocols.

[32] Even very tall buildings, such as the “towers” of Hellinikon, present many urban planning and environmental advantages, subject to conditions, mainly concerning their design, construction technology, and ground coverage; see CoS Plenary 1305/2019, 1306/2019, 1761/2019, 29/2018, PE 240/2017, and Mir M.A., Kheir A.K., “Tall Buildings and Urban Habitat of the 21st Century: A Global Perspective,” 2012, DOI: 10.3390/buildings2040384.

[33] M.Ch. Vlachou-Vlachopoulou, The Sources of Public Law, Nomiki Vivliothiki, 2020, pp. 103-110.

[34] Law 4936/2022 “National Climate Law – Transition to climate neutrality and adaptation to climate change, urgent provisions to address the energy crisis and protect the environment” (Official Gazette 105/A/27.5.2022).

[35] Article 17 of the National Climate Law.

[36] I. Vasilopoulou, I. Tsakalogianni, “National Climate Law: A First Mapping and Assessment,” PerDik 4/2022, p. 520. Bioclimatic architecture, or bioclimatic building design, is design aimed at optimal exploitation of the natural and climatic conditions of an area, mainly through the use of passive systems, in order to achieve, throughout the year, optimal indoor thermal comfort, air quality, and natural lighting conditions with the lowest possible energy consumption; see G. Giannakourou, Spatial and Urban Planning Law, Nomiki Vivliothiki, 2022, p. 321.

[37] See CoS 2258/2014, 4031/2001, 1027/1999, 557/1999, 1507/1997, among others.

[38] K. Karatsolis, Introduction to Urban Planning Law in Greece and Cyprus, p. 41.

[39] Already since the 20th century; see I. Theocharopoulou (2017), Builders, Housewives, and the Construction of Modern Athens, London: Black Dog Publishing Limited, pp. 9-18.

[40] K. Karatsolis, Introduction to Urban Planning Law in Greece and Cyprus, p. 231.

[41] K. Dagkli, “The sustainable city of tomorrow – Ecological urban planning and urban ecology,” PerDik, 2/2009, pp. 317-319.

[42] Gl. Siouti, Handbook of Environmental Law, Sakkoulas Publications, 2018, pp. 7-8.

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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.

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[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

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