La figura del étranger como imagen de la interculturalidad

TP10.1 The effect of the EU-Flood Directive on the Austrian legislature

Lead: Prof. Dr. Helmut Habersack, University of Natural Resources and Applied Life Sciences, Vienna

The project presents a study on the possible consequences of the EU directive on the assessment and management of floods (2007/60/EG) on Austrian law. An essential basis for the discussion of the legal questions and problems is given by the projects TP 10.2 and TP 10.3. The main part of this report is dealing with suggestions for the implementation of the EU directive on the assess- ment and management of floods and for the improvement of the flood relevant paragraphs in the Austrian water law.

The existing water law is oriented towards structural flood protection measures. Non structural measures and especially the preservation and restoration of inundation areas is not sufficiently regarded in the water law. Thus, the priority of non structural measures should be integrated into the water law as principle aim. Since the flood directive puts more weight on inundation areas and flood retention this fact should be reflected in the implementation into the Austrian water law. The water law should give more attention to the preservation and restoration of inundation areas. A clear regulation is needed with respect to existing buildings in inundation areas. The use of inunda- tion areas is often not possible because of settlements, even if of low density. In these cases eco- nomic benefits must be given to leave such inundation areas and to allow again flooding to reduce flood risk.

Changes in the flood water levels, which are according to the existing water law below a certain significance level, must (of course if no other public interests or third party rights are negatively influenced) be permitted. It could be taken into consideration (instead of taking a significance level) to forbid any negative modification of the flood situation, which cannot be compensated by certain additional requirements. As detailed text suggestion in § 105 WG the following modification could be made: „a negative influence of the flood propagation on the basis of a catchment wide „inunda- tion area register”….”.

Already based on basic legal considerations a state protection obligation against flood hazard is given. According to the existing Austrian law the planning and realization of flood protection meas- ures is allowed but not an obligation. In this respect it would be good to discuss whether an obliga- tion for the planning and implementation of flood protection measures should not be incorporated into the Austrian water law.

At the moment only the catastrophe management laws of the individual states contain the possibili- ty to evacuate settlements temporarily. The problem of a permanent dislocation of settlements out of the inundation area is not included in the Austrian law so far. In the long-term concepts should be developed, how necessary and permanent dislocations should be planned and administrated. Concerning an extension of the permit necessity in the inundation area only § 38 of the Austrian water law has to be modified. There, instead of the 30 year flood the 100 year flood should be tak- en as value. Further suggestions for modification regard the necessity for maintenance, permit withdraw, last measures to restore natural conditions, problem of space availability and water rights of fishing permits. Concerning the application of force the introduction of a paragraph con- cerning an evaluation comparison is suggested.

Further improvements are related to the water management planning unit.

As essential point would be the creation of a homogeneous, uniform flood protection law. As op- timal variant the introduction of a specific new chapter in the water law would be essential. A split implementation is not suggested. Within a compact section in the water law pointers to other chap- ters and mechanisms outside could be set.

Not only a modification of the water law is essential, also the adaptation of the specific paragraphs in the forest law and torrent and avalanche control law is necessary. Suggestions are made with respect to the forest law, torrent and avalanche control law, hydraulic engineering funding law and a unification of the competences during the catastrophe.

Concerning spatial planning laws of the states it is to be assumed, that the flood directive is na- tionally not primarily a subject of the states, but the implementation of “specific planning to avoid water hazards”, and thus a competence of the federal state.

of interaction with significant demand for integration and synergies are given. On the one hand the flood directive intends to capture intensive usage related information and measures which influ- ence spatial planning measures as an information and planning basis. On the other hand legally binding sectoral planning of the federal state can lead to decisions in usage, which have to be re- garded in community and regional spatial planning. Furthermore – beside legal regulations in the water law – spatial planning measures contribute substantially to the reaching of the goals of the flood directive, especially by limited use of inundation areas, which restrict construction in inunda- tion areas.

TP10.2 Flood protection on the basis of the Austrian water law

Lead: Prof. Dr. Doris Hattenberger, University of Klagenfurt

The legal requirements of the Austrian laws pertaining to water are in a constellation of tensions on the one hand to the meaning of art 2 ECHR regarding the state´s liability for the precaution regard- ing natural hazards and on the other hand the provisions of the directive 2007/60/EC on the as- sessment and management of flood risks, which provide for first a liability of states for the precau- tion with respect to natural hazards and second a priority to non-structural measures of protection. These requirements meet with needs of the implementation of of norms regarding flood risk. To implement these regulations and to force the efficiency of the regulations of the Austrian law per- taining to water some measures have to be implemented and deliberated. This “package of meas- ures” should embrace the integration of the “flood plain” as an independent category of measure of protection, a regulation which enables to mandate restrictions in the management of these flood plains and the possibility to reserve flood plains. To implement state´s liability for the precaution with respect to natural hazards an intensified involvement of the “Bundeswasserbauverwaltung” should be deliberated. The efficiency of flood risk protection measures could be enforced by inte- grating a norm providing for the appreciation of values, the possibility to rule conditions which mod- ify the applied project, an accentuation of the definition of the public interest on an unaffected flood water flow, the change of the regulations regarding the repair of flood risk protective structures and an express norm with respect of the return of a consent.

TP10.3 Hazard areas/hazard zones seen from an legal perspective

Lead: Prof. Dr. Karl Weber, University of Innbruck

The flood risks directive as a comprehensive and integrative work of regulations tries to realize preventive flood protection as uniform as possible in all Member States. This is realized in a stepped procedure containing an extensive inventory, the determination of hazard zones and packages of measures.

existence of a homogeneous definition of “natural hazard”, this term is used in a different way in each law. The flood risks directive´s definition of “natural hazard” is binding for the harmoniza-tion of the different definitions in national law.

The transposition of the flood risks directive into Austrian law first has to take the provisions of constitutional law into consideration. In the first place the federal poly-level system is to consider here. Measures of flood protection fall in the field of various competence areas of Art 10 B-VG, as they do in the field of provincial and municipal competence areas.

So far aspects of constitutional rights concerning flood protection have not been well enough per- ceived yet. On the one hand the constitutional rights represent the basis of a state obligation of ensuring to protect the public against flood risks, on the other hand they represent a barrier for state measures concerning flood protection.

The flood risks directive imposes a variation of planning acts which are to be supplemented with packages of measures. The current Austrian law already contains a multitude of legal instru-ments which can be adapted for the transposition of the flood risk directive. In the future the ha-zard zone plans will have to be given a legally binding character. A reorientation of the Austrian flood protec- tion law towards a priority of non-structural initiatives to structural initiatives is indis-pensable.

TP10.4.a Legal dealings with contruction and dedication stock, property protec-

tion

Lead: Prof. Dr. Arthur Kanonier, Technical University, Vienna

The central tasks of spatial planning include the designation of building land in suitable areas and, on the other hand, of locations which need to be kept free from development because of their risk potential. Even if designated land at risk are only sometimes expressly mentioned in the legal ob- jectives, these altogether imply that settlements in areas at risk are contradictory to important is- sues of spatial planning. However, one can observe more and more often that existing buildings and building land effectively designated as such are affected by natural hazards. Designating land for building development in areas at risk tends to be inconsistent with the legal objectives of spatial planning and zoning criteria which aim to direct development away from hazard zones.

In order to comply with one of the aims of settlement policy, namely to avoid development as much as possible in areas at risk, there are essentially three types of measures to deal with designated land at risk:

• Spatial planning measures for building land already designated as such,

• Legal measures for existing buildings – protection of buildings and building plots (including technical improvements and re-settlement),

In the spatial planning laws of the federal provinces there are different rules specifying which areas at risk are considered relevant for spatial planning – i.e. which areas at risk have to be specially designated and where building land may not be designated under the zoning plan. In the case of building land already designated in locations at risk, exemption clauses are of particular impor- tance since in these cases the basic rule not to permit development is suspended.

When designating building land, individual spatial planning laws distinguish, with a view to natural hazards, between land with and without buildings. In principle, one can assume that rules pertain- ing to building land in areas at risk specify obligations which merely affect land without buildings. Land with buildings is usually retained as such, with occasional specifications for the relevant plot of land in terms of building restrictions - such as specific zones for building preparation.

Some spatial planning laws stipulate specific rules on how to deal with existing building land in areas at risk. Some spatial planning laws contain rules for building land in areas at risk which do not eliminate the designation as building land as such but impose additional restrictions on use and development such as building bans or specific zones for building preparation. What is noticeable with regard to spatial planning regulations for designating building land in areas at risk is the vary- ing regulatory level in the different provinces. While for example Styria has several restriction op- tions – including building bans as well as preparation and rehabilitation areas – which apply to building land in areas at risk, other provinces have considerably fewer measures or none at all. With zoning amendments in areas at risk, existing options for use and allocation may be reduced and legal planning requirements changed in such a way as to prevent future increases of the dam- age potential. The spatial planning laws sometimes stipulate obligations for municipal planners to amend their zoning plans for building land in areas at risk. In this respect one has to distinguish between specific regulations expressly concerned with plan amendments in areas at risk and gen- eral amendment provisions. Specific legal provisions for zoning plan amendments with regard to building land in areas at risk are in force in Carinthia and Lower Austria, and an increase of the risk potential should essentially be dealt with by re-designating building land into grassland (re-zoning). In both of the federal provinces there are specific legal regulations for general re-zoning conditions and exemptions.

TP10.4.b Legal aspects in the building law for post protection measures of exist-

ing buildings in flood prone areas

Lead: Prof. Dr. Karim Giese, University of Salzburg

Despite appropriate restrictions in the field of spatial planning and development, there are many places with settlement areas at risk from floods. Provided that existing buildings in these settlement areas were lawfully established (e.g. on the basis of permits granted by the authorities), any official follow-up measures in the field of flood control require specific legal authorisations under both pro- cedural and substantive law. Such authorisations (or obligations) are specified in the building regu-

lations of the federal provinces, in the general procedural law (General Administrative Procedures Act) as well as in the legal regulations for municipal corporations (municipal regulations, town sta- tutes). These authorisations are usually linked to qualified hazardous situations (danger to life or health of those using the buildings in question; risk of severe damage for the national economy) and may, in individual cases, justify the requirement that certain structural follow-up measures (to ensure “flood-adapted” construction) need to be taken, or even that a building permit has to be revoked (“resettlement”). Because of the varying regulatory level of the different provincial laws (building and municipal law) it is not possible to guarantee the same high “level” of protection in all of Austria’s federal provinces for existing buildings in settlement areas at risk from floods.

TP10.5.a Questions of liability with reference to natural hazard management (ci-

ties and communities)

Lead: Prof. Dr. Ferdinand Kerschner, University of Linz

According to recent jurisprudence of the Supreme Court of Austria (OGH), the cities and municipal- ities have to meet strict obligations in the field of Spatial Planning and building law. The result is a high liability risk for the cities and municipalities associated with flood-vulnerable areas. However, in our opinion, this strict judicature is according to the current legal situation in several areas not justified. In the area of natural hazards, more and more tasks are assigned to the cities and muni- cipalities, although they often lack the necessary material resources.

But Natural hazards do not stop at administrative boundaries. Therefore “supra-local” measures would be much more effective in dealing with natural hazards. It would be desirable to assign more obligations to the Federal States or to provide clearer guidelines to the cities and municipalities, which they can follow.

To avoid liability, municipalities and cities can generally be recommended at this stage, to fulfil scrupulously their flood-related duties as far as possible and reasonable.

Finally, municipalities and cities should necessarily ensure that potential danger areas are general- ly recognizable for the population. Comprehensive information is necessary here.

TP10.5.b Questions of liability with reference to natural hazard management (au-

thorised experts)

Lead: Prof. Dr. Ferdinand Kerschner, University of Linz

Cities and municipalities very often consult the plans and opinions of an expert for the assessment of issues related to natural hazards. If these reports, information or plans of the experts prove false or flawed afterwards, we are confronted with questions of liability in case of damage.

tween the so-called “Amtssachverständigen” (=”official experts”) and “nichtamtlichen Sach- verständigen” (=”non-official experts”) within the meaning of § 52 AVG.

If an Amtssachverständiger (“official expert”) fulfils sovereign tasks when he furnishes an opinion, his acting will be attributed to the legal entity (eg municipality, city, Federal State) he (“functionally”) worked for (the legal entity which obtained the expert opinion). Within the limit of administrative assistance the experts generally execute sovereign tasks. If experts give advices or informations within the private sector (“non-souvereign task”), claims for damages pursuant to the General Civil Code (ABGB) against these experts themselves come into question.

According to the jurisprudence of the Supreme Court of Austria (OGH), so-called “nichtamtliche Sachverständige” (“non-official experts” within the meaning of § 52 AVG) are liable to an injured party directly and personally, because they are no “Organe” (= “institutions”, “bodies”) within the meaning of the legal requirements of the Austrian law pertaining to public liability). In our opinion, this point of view of the Supreme Court of Austria is highly questionable.

Careful approach when furnishing an opinion can generally be recommended. In addition, the ex- pertise should contain an indication of potential risks.

To meet the interest of injured parties to enforce their claims, the legal entities (eg municipality) should, if they have no “official experts” (Amtssachverständige) available, only appoint “non-official experts” (nichtamtliche Sachverständige) with a sufficient indemnity insurance.

TP10.6 Questions with regard to law of property and liability concerning the erec-

tion of constructions agains natural dangers (floods, mudflow, avalanches, rock

falls, land slides, ..)

Lead: Prof. Dr. Ernst Karner, University of Vienna

Whereas land owners are in principle not answerable for damage resulting from the impact of a purely natural phenomenon (“act of God”), neither under the law concerning the respective interest of neighbours nor under the law of damages, the state’s liability comes into question not only in the event of damage caused by a positive act but also where measures to avert a danger are lacking. The building and operating of structures for the protection against torrents, avalanches and falling rocks raises several liability issues. As regards liability for protective structures, obligations to make land or premises safe for persons or vehicles are of prime relevance and incumbent on anyone creating a hazard, or allowing it to persist on his property. Apart from the liability for buildings as specified in section 1319 of the General Civil Code of Austria (ABGB) and the path keeper’s liability as stipulated in section 1319a of the General Civil Code of Austria (ABGB), in particular section 50 (6) of the Austrian Water Act has to be considered as a basis of liability, since it regulates the