In connection with the protection of nature and cultural heritage, the popular initiative "For the future of our nature and landscape" (“Biodiversitätsinitiative” or “biodiversity initiative” for short) will be put to the vote on 22 September 2024. The biodiversity initiative provides for the introduction of a new supplementary constitutional article on the protection of nature and cultural heritage, which in particular obliges the cantons to directly take into account objects worthy of protection (in particular landscapes, sites, historical sites and natural and cultural monuments) as part of their duties. The new article would also set a narrow framework for weighing up interests in the event of significant encroachments on protected objects, thereby restricting the cantons' and communes' room for the exercise of their judgement. It also obliges the Swiss Confederation and cantons to take care of nature, landscape and building culture outside the protected objects.
Approval of the initiative could have a significant impact on construction projects. This is particularly true in urban areas such as Zurich, where the regulations in the area of nature and heritage protection are already extensive. One challenge in this context, for example, is the requirement to preserve contemporary architectural witnesses for the future. Today, contemporary architectural witnesses are protected not only through their inclusion in municipal and cantonal inventories (as individual objects), but also through the inclusion of (often large-scale) areas in the Federal Inventory of Swiss Heritage Sites (ISOS). In the city of Zurich, around 75% of the entire settlement area is recorded in the ISOS federal inventory and assigned protection objectives. It is therefore not surprising that the ISOS is an issue in numerous construction projects in Zurich. The protection goals of the ISOS are sometimes very restrictive (keyword: demolition ban), but they are not absolute. The protection goals are only binding for a construction project if they are "directly applied". Direct application only takes place if the property concerned (or the area in which it is located) is listed in the ISOS and the fulfilment of a federal task is affected at the same time. To the surprise of many prospective builders, it is not uncommon for private properties in the city of Zurich to be affected by a federal task. The most frequently affected federal tasks are, for example, interventions in groundwater, construction projects within the water space, construction of mobile phone antennas, construction of civil defence facilities or shelters or construction of PV systems.
For those wishing to build, an entry in the ISOS therefore initially means the need for well-founded clarification as to whether the protection objectives will be directly applied. At best, this leads to a delay, possibly to an adjustment, but often to the end of the construction project. For this reason, the City of Zurich recently called for an adjustment to the direct application of ISOS by the federal government and canton in a press release dated 26 June 2024. In future, this should only take place if there is a material connection between the inventory and the identified federal tasks. According to the press release, this would be the case, for example, if mobile phone antennas are built that are actually visible in the protected townscape. According to André Odermatt, Zurich's head of building construction, "[the ISOS] is a valued instrument. However, direct application would overload the load".
Opponents of the initiative are concerned that the situation could become even worse if the biodiversity initiative is approved. Specifically, it is feared that even stricter requirements will be imposed in the planning permission process, which will result in additional restrictions on building development opportunities.
In the run-up to the vote on 22 September 2024, voters will once again have the opportunity to address the important and complex issues of reconciling growth with the protection of natural and cultural heritage and to consider what a balanced solution for Switzerland's structural and ecological future might look like.
If you have any legal questions in connection with the ISOS, the biodiversity initiative or a construction project in general, our construction and property law team will be happy to advise you.
