«Nødvendig» som vilkår for tyngande plikter ved areal- og ressursforvaltning

Abstract

This paper discusses what constitutes ‘necessary’ requirements for private actors who gain public permits - and thus the right to use often untouched land which again can affect natural resources, etc. The overarching question is whether ‘necessary’ should be understood in more general terms of nature, environment, and societal interest, or determined from the perspective of the actor who usually will have a narrower perspective on what constitutes ‘necessary’ infrastructure and relevant measures – based on the actor’s own interests and goals. This article demonstrates that the rules that apply to private actors’ responsibility for such issues as climate, the environment and other common benefits are formulated differently in different laws, in different provisions and at different stages of overall planning and detailed planning – as well as in development agreements and decisions. The rule is often vague and has repeatedly been the subject of several disputes in both the public administration – cases of interpretation of law – and in the court system. The cases concerning the interpretation of legal terms and legal remedies in both the Planning and Building Act and the Aquaculture Act point to some problems, but perhaps also to solutions and possibilities. A general weakness in the law and in regulations is that private actors and the industry experience that use of conditions which will meet the “sum effects” of several measures can come into conflict with expectations of a clear causal connection and proximity, but perhaps especially the matter of equality between private actors in the same market. In conclusion, the article looks at how such challenges can be solved through greater use of strategic instruments for cost allocation between actors.