Facts

Parties and Instances: The appellant is the Municipality of Ittigen, represented by the Municipal Council. The respondent is the Government Council of the Canton of Bern, acting through the Directorate of the Interior and Justice. The prior instance is the Administrative Court of the Canton of Bern (judgment of 24 March 2020, 100.2019.210U). The Federal Office for Spatial Development (ARE) has submitted observations and agreed with the decision of the Administrative Court.

Subject Matter: Release of land parcels from the inventory of farmland of particular quality (FFF).

Facts:

  • On 18 September 2014, the Office for Municipalities and Spatial Planning (AGR) and the Office for Agriculture and Nature (LANAT) informed the municipalities of planned supplements to the cantonal FFF inventory.
  • The Municipality of Ittigen pointed out that the FFF recorded in the inventory in the areas «Ittigenfeld» and «Chasseralstrasse» were designated in the Regional Overall Transport and Settlement Concept (RGSK) of the Regional Conference Bern-Mittelland as priority areas for residential settlement expansion (confirmed by the canton on 23 May 2017). It wished to designate zones subject to planning obligation (ZPP L and M) there. It also disputed the FFF quality of an additional area to be included on parcel No. 3733.
  • On 15 November 2017, the Municipality requested that the inclusion of the additional area be waived and that the areas within the ZPP perimeters be released from the inventory.
  • On 29 August 2018, the Government Council decided to definitively include the adjusted additional areas (278 ha in total) and to release provisionally included areas that did not meet the FFF criteria. The disputed additional area on parcel No. 3733 remained in the inventory as an «unadjusted additional area»; the request for release of the ZPP areas was not granted.
  • A first appeal by the Municipality to the Federal Supreme Court was declared inadmissible on 28 May 2019 (judgment 1C_537/2018) and was referred to the Administrative Court. On 24 March 2020, the Administrative Court dismissed the appeal insofar as it was admissible, and did not entertain the further requests (annulment of the Government Council decision, annulment of the inventory, declaratory requests regarding the federal-law illegality of the reference map and its qualification as a sectoral or structure plan).
  • By appeal of 11 May 2020, the Municipality requested the Federal Supreme Court to annul the prior instance's decision and remit the matter for a new assessment; alternatively, to annul the Government Council decision or the reference map; subordinately, to declare the reference map contrary to federal law and to annul the inventory.
  • The Administrative Court and the Directorate of the Interior and Justice requested dismissal of the appeal.

Legal Question: Does the cantonal FFF inventory, in particular the parcel-precise recording of areas and the inclusion of unadjusted additional areas as a reserve, infringe the municipal autonomy in local planning (Art. 50 para. 1 Cst. in conjunction with Art. 109 KV/BE), or is it contrary to federal law, and should the conflict between FFF protection and settlement development already have been resolved at the inventory stage?

Considerations

Admissibility and Subject Matter of the Dispute: As the body responsible for municipal spatial and land-use planning, the Municipality is entitled to bring an autonomy appeal under Art. 89 para. 2 lit. c FSCA. The Federal Supreme Court only examines the requests that the Administrative Court has assessed on the merits. The reasoning for non-entry (subject matter exceeded; declaratory requests subsidiary to constitutive requests) is not substantively challenged by the Municipality; the Federal Supreme Court therefore confines itself to the requests for release and non-inclusion.

Legal Basis and Autonomy: FFF are particularly valuable agricultural land subject to enhanced protection (Art. 3 para. 2 lit. a and Art. 15 para. 3 SPA; Art. 26 et seq. SPO). Art. 30 para. 1bis SPO tightens the requirements for rezoning; Art. 28 SPO requires the cartographic recording of FFF for each municipality; the FFF Sectoral Plan 2020 requires the inventorying of all soils with FFF quality (G4). In the Canton of Bern, Art. 8a-8c BauG and Art. 11a-11g BauV govern the preservation and use of cultivated land. Municipalities are autonomous in local planning (Art. 50 para. 1 Cst.), but the cantonal legislator may subsequently narrow the limits, as long as directly constitutionally protected powers are not affected. The Municipality may, however, challenge the formal competence and the substantive lawfulness of the interference (BGE 146 I 36 consid. 3.3). Federal law and cantonal constitutional law are reviewed freely, while cantonal statutory and regulatory law is reviewed only for arbitrariness.

Competence of the Government Council: Art. 11a para. 3 BauV/BE expressly provides that the Government Council records the FFF in an inventory. Parcel-precise recording is necessary under Art. 28 para. 2 SPO. The prior instance rightly distinguished between the determination and recording of FFF in the inventory, on the one hand, and their use (rezoning, building projects), on the other; the spatial planning use is decided only in the land-use plan or building permit procedure. No arbitrariness is apparent.

Inventorying…