1The Confederation shall lay down principles on spatial planning. These principles are binding on the Cantons and serve to ensure the appropriate and economic use of the land and its properly ordered settlement.
2The Confederation shall encourage and coordinate the efforts of the Cantons and shall cooperate with them.
3Confederation and Cantons shall take account of the requirements of spatial planning in fulfilling their duties.
1The National Land Survey is the responsibility of the Confederation.
2The Confederation shall issue regulations on official surveying.
3It may issue regulations on the harmonisation of official information relating to the land.
1No more than 20 per cent of the total stock of residential units and the gross residential floor area in any commune may be used as second homes.
2The law shall require communes to publish their first home percentage plan and a detailed report on its implementation every year.
42* With transitional provision.
Overview
Art. 75 Const. governs spatial planning in Switzerland. This provision allocates tasks between the Confederation and the cantons. The Confederation establishes the basic rules according to Art. 1 SPA. The cantons carry out the actual planning and create structure plans according to Art. 6 ff. SPA. The municipalities provide for zoning plans according to Art. 14 ff. SPA, which regulate where building is permitted.
The main objective of spatial planning is economical use of land. Land should be used appropriately — that is, each zone has a specific purpose. Residential zones are for houses, agricultural zones for farms. The Federal Court has described this principle of separation between building zones and non-building zones as constitutionally binding in BGE 147 II 309.
A concrete example: A family wants to build a house. They can only do this in the building zone, not in a field or forest. The municipal council examines whether the planned house fits the zone. In doing so, it must observe the cantonal structure plans and the Federal Act on Spatial Planning.
The Confederation additionally has coordination tasks. According to Art. 75 para. 2 Const., it ensures that cantonal planning is coordinated. This occurs primarily through the approval of cantonal structure plans according to Art. 11 SPA. The Federal Office for Spatial Development supports the cantons with specialist advice and financial assistance.
All authorities — including those outside spatial planning — must consider spatial planning requirements in their decisions. If they build a road, for example, they must examine how this affects settlement development. This duty to consider follows from Art. 75 para. 3 Const.
Art. 75 FC — Spatial Planning
#Doctrine
#1. Legislative History
N. 1 Art. 75 FC traces back to Art. 22quater of the Federal Constitution of 1874, which was adopted by popular vote on 14 September 1969 with 55.3% in favour. The inclusion of a spatial planning article in the Federal Constitution was a direct response to the uncontrolled urban sprawl and land speculation of the post-war years. The constitutional legislator aimed to empower the Confederation to legislate while simultaneously preserving spatial planning as a core cantonal responsibility (BBl 1967 II 133 ff.).
N. 2 The totally revised Federal Constitution of 1999 adopted the spatial planning article unchanged in substance and reformulated it linguistically as Art. 75 FC. According to the Federal Council's dispatch of 20 November 1996, the formulation «appropriate and sparing use of land» was intended to serve as the substantive benchmark for all spatial planning measures (BBl 1997 I 1 ff., esp. 310). The Federal Council emphasised the function of the spatial planning article as a competence norm, not as a directly applicable fundamental right.
N. 3 The Spatial Planning Act (SPA; SR 700) of 22 June 1979 gives concrete form to Art. 75 FC at the statutory level. The partial revision of the SPA of 15 June 2012 (AS 2014 899) further considerably strengthened the constitutional principle of sparing use of land: Art. 1 para. 1 SPA (new version) now expressly enshrines the requirement to separate building zones from non-building zones — a principle that the Federal Supreme Court had already previously qualified as unwritten constitutional law (BBl 2010 1049 ff., esp. 1064, para. 2.1). The constitutional addendum Art. 75b FC (secondary residences) was inserted on 11 March 2012 as an independent provision and must be distinguished from Art. 75 FC (→ Art. 75b FC).
#2. Systematic Classification
N. 4 Art. 75 FC is a competence norm of federal constitutional law. It governs the allocation of responsibilities between the Confederation and the cantons in the area of spatial planning, but does not establish any subjective right of individuals. The Federal Supreme Court holds that constitutional provisions on spatial planning do not constitute constitutional rights within the meaning of Art. 95 lit. c BGG: «[Art. 101 KV/ZH] cannot be described as a constitutional right: as such, constitutional provisions are those which seek to secure for the citizen a protected sphere against state interference» (Judgment 1C_157/2014 of 4.11.2015 cons. 1.4). Art. 75 FC is therefore not a fundamental right, but simultaneously a state objective mandate and an organisational norm.
N. 5 Within the Federal Constitution, Art. 75 FC is located in Chapter 4 («Environment and Spatial Planning») and is systematically closely linked to:
- ↔ Art. 73 FC (Sustainability): The requirement of sparing use of land is an expression of the overarching principle of sustainability.
- → Art. 74 FC (Environmental Protection): Spatial and environmental planning require coordination.
- → Art. 75b FC (Secondary Residences): Special rule for municipalities with a high proportion of secondary residences.
- → Art. 78 FC (Protection of Nature and Cultural Heritage): Right of appeal of associations in connection with federal responsibilities in the area of spatial planning.
- → Art. 26 FC (Guarantee of Property): Zone plans interfere with property rights and require a statutory basis and proportionality (→ Art. 36 FC).
- ↔ Art. 3 FC (Cantons): The cantons bear primary responsibility for spatial planning; the residual competence under Art. 3 FC belongs to them.
N. 6 In relation to Art. 49 FC: to the extent that federal law — notably the SPA — lays down binding principles for building and non-building zones, it takes precedence over cantonal law. Cantonal popular initiatives that conflict with federal law are invalid (Judgment 1C_109/2014 of 4.3.2015 cons. 6.3, 6.10; BGE 128 I 190).
#3. Elements of the Norm / Substantive Content
3.1 Confederation's Framework Legislation (para. 1 sentence 1)
N. 7 The Confederation is empowered to establish principles of spatial planning, not to enact exhaustive substantive legislation. This is a concurrent legislative competence in the form of framework legislation: the Confederation sets the framework within which the cantons exercise their own discretion (Ruch, in: Ehrenzeller/Schindler/Schweizer/Vallender [eds.], St. Galler Kommentar zur schweizerischen Bundesverfassung, 4th ed. 2023 [hereinafter: SGK-BV], Art. 75 N. 15 ff.; Griffel, in: Waldmann/Belser/Epiney [eds.], Basler Kommentar Bundesverfassung, 2nd ed. 2024 [hereinafter: BSK-BV], Art. 75 N. 10 ff.).
N. 8 Federal legislation (SPA, Spatial Planning Ordinance [SPO; SR 700.1], sectoral plan law) gives concrete expression to the framework mandate. The Federal Supreme Court has clarified that it is not contrary to the system to declare a cantonal popular initiative invalid for violating federal spatial planning law, to the extent that federal law lays down binding rules for appropriate and sparing spatial organisation (Judgment 1C_109/2014 cons. 6.3). The cantons possess «not insignificant powers», but are bound by the relevant federal law.
3.2 Cantonal Planning Obligation and Planning Objectives (para. 1 sentence 2)
N. 9 Spatial planning is the responsibility of the cantons: this is the primary constitutional assignment. The cantons must fulfil this responsibility either in their own capacity or by delegation to the municipalities. The Federal Supreme Court has recognised that municipalities can act autonomously in local spatial planning matters as long as the canton has not made exhaustive use of its own competence (BGE 142 I 177 cons. 3).
N. 10 The dual constitutional objective of spatial planning encompasses:
- Appropriate and sparing use of land: The term «sparing» means economical and careful. It requires that land be consumed only when and to the extent strictly necessary for the fulfilment of a task (Griffel, BSK-BV, Art. 75 N. 21). The Federal Supreme Court derives directly from this objective the constitutional separation principle: building and non-building zones must be strictly separated from one another (BGE 147 II 309 cons. 5.5). This principle is regarded as a central planning objective grounded in the Constitution and was enshrined in statute in Art. 1 para. 1 SPA by the 2012 SPA revision (BBl 2010 1064 para. 2.1).
- Orderly settlement of the country: Settlements are to be developed in a spatially coordinated, high-quality and concentrated manner. This objective operates as a substantive limit on oversized building zones and unplanned urban sprawl (Ruch, SGK-BV, Art. 75 N. 30 ff.).
N. 11 Spatial planning measures — notably zone plans — may interfere with fundamental rights, in particular the guarantee of property (→ Art. 26 FC) and economic freedom (→ Art. 27 FC). The Federal Supreme Court has consistently held that spatial planning measures that are spatially motivated and fall within the objective scope of Art. 75 FC are in principle not inconsistent with economic freedom — provided the latter is not emptied of its substance (BGE 142 I 162 cons. 3.3; BGE 109 Ia 264 cons. 4). Any interference must satisfy the general conditions for restricting fundamental rights under → Art. 36 FC: statutory basis, public interest, proportionality, and respect for the core of the right.
3.3 Confederation's Duty to Promote and Coordinate (para. 2)
N. 12 Art. 75 para. 2 FC obliges the Confederation to assume a cooperative role: it promotes and coordinates cantonal spatial planning efforts and works together with the cantons. This gives rise to a duty of coordination as an independent principle. The Federal Supreme Court has held that spatially significant activities of the Confederation (e.g. sectoral plan procedures for airports) must be coordinated — a failure to coordinate between an operating regulations procedure and a sectoral plan procedure violates this principle (BGE 137 II 58 cons. 3 ff.). The duty of coordination is also given procedural expression in Art. 25a SPA.
N. 13 Specific instruments of federal coordination include: federal sectoral plans (Art. 13 SPA), concepts and guidelines (Art. 13 SPA), the federal inventory under Art. 5 NHG, and special land use plans. The duty to promote is manifested in financial assistance and professional support provided by the Federal Office for Spatial Development (ARE).
3.4 General Duty of Consideration (para. 3)
N. 14 Art. 75 para. 3 FC establishes a mutual duty of consideration for the Confederation and the cantons. In the performance of all spatially significant responsibilities — including those outside the narrower field of spatial planning law (e.g. roads, energy, asylum infrastructure) — the requirements of spatial planning must be taken into account. This is a cross-cutting clause: no state authority may ignore the spatial planning objectives when performing its functions (Griffel, BSK-BV, Art. 75 N. 30). The duty of consideration is addressed to all levels of the state, including ultimately the municipalities as the implementing level of cantonal spatial planning.
#4. Legal Consequences
N. 15 Art. 75 FC is primarily a competence norm without direct subjective legal effect. Individuals cannot derive directly from Art. 75 FC either a claim to specific zonings or a claim to the omission of planning measures. The norm is addressed to state authorities as the recipients of the planning obligation.
N. 16 Art. 75 FC nevertheless produces indirect effects in several respects:
- The separation principle (para. 1 sentence 2) is justiciable and gives rise to an obligation on the authorities to consistently order the removal of illegal structures outside the building zone. A 30-year forfeiture period, as applicable to structures within the building zone, does not apply outside the building zone, as this would undermine the constitutional separation principle (BGE 147 II 309 cons. 5.5).
- Cantonal popular initiatives that conflict with federal spatial planning law (e.g. a general authorisation for construction outside the building zone) are invalid for violation of Art. 75 FC in conjunction with Art. 49 FC (Judgment 1C_109/2014 cons. 6.10).
- Planning principles under Art. 3 SPA, which give concrete expression to Art. 75 FC, are justiciable and binding on the cantonal legislature to the extent that it performs spatially significant responsibilities (BGE 112 Ia 65 cons. 4; Judgment 1C_157/2014 cons. 3.3). A general-abstract exclusion of the consideration of a planning principle is contrary to federal law (Judgment 1C_157/2014 cons. 3.8).
N. 17 In the area of the right of appeal of associations: new zonings under the revised SPA (Art. 15 SPA) and planning decisions based on Art. 75b FC are to be characterised as federal responsibilities within the meaning of Art. 78 para. 2 FC, which triggers the right of appeal of nature and cultural heritage protection organisations (BGE 142 II 509 cons. 3; BGE 139 II 271 cons. 9 ff.).
#5. Contested Issues
N. 18 Nature of the separation principle — constitutional rank or statutory level? The Federal Supreme Court long described the separation principle as unwritten constitutional law (Judgment 1C_109/2014 cons. 6.5, citing BBl 2010 1054 and 1064). Ruch (SGK-BV, Art. 75 N. 37) affirms the constitutional rank of the separation principle and regards it as a central planning objective grounded in Art. 75 para. 1 FC. Griffel (BSK-BV, Art. 75 N. 21) agrees and derives the separation principle directly from the concept of sparing use of land. With its statutory entrenchment in Art. 1 para. 1 SPA (2014), the controversy has lost much of its practical significance — the principle applies at both normative levels.
N. 19 Scope of the Confederation's framework legislative competence. It is disputed how far the Confederation may elaborate its «principles» without encroaching on the core competence of the cantons. Ruch (SGK-BV, Art. 75 N. 18 f.) takes the view that the Confederation may only enact framework principles, but not exhaustive substantive rules. Practice shows, however, that the legislature and the Federal Supreme Court grant the Confederation considerable scope for elaboration: the revised 2012 version of the SPA, which limits building zones quantitatively (Art. 15 SPA), and the requirements for sparing use of land are considered to be consistent with the Constitution (BBl 2010 1049 ff., para. 2.1). Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 858 ff. characterise the competence as a «framework competence with strong federal direction».
N. 20 Duty of coordination and federal infrastructure projects. Whether Art. 75 paras. 2 and 3 FC impose on the Confederation an independent coordination mandate that also applies vis-à-vis federal authorities with their own subject-matter responsibilities has not been conclusively resolved. The Federal Supreme Court held in BGE 137 II 58 that coordination between a sectoral plan and the operating regulations for Zurich Airport is legally required. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3420 emphasise that Art. 75 para. 3 FC establishes a genuine legal obligation, not merely a political declaration of intent.
N. 21 Relationship to constitutional economic guarantees. The tension between spatial planning use restrictions and economic freedom (→ Art. 27, 94 FC) is the subject of ongoing controversy. The prevailing doctrine and the Federal Supreme Court (BGE 142 I 162 cons. 3.3) take the view that restrictions on economic freedom motivated by spatial planning are in principle permissible as long as they fall within the «objective scope of Art. 75 FC». A prohibited «needs clause» only arises where, under the guise of spatial planning, the actual aim is to interfere with economic competition. The demarcation between permissible spatial planning use management and impermissible economic regulation remains a case-by-case assessment.
#6. Practical Notes
N. 22 Construction outside the building zone. Every project outside the building zone requires an exceptional authorisation under Art. 24 ff. SPA. The requirement of site-specificity under Art. 24 lit. a SPA is consistently held to be satisfied only where a location outside the building zone is objectively necessary for technical or operational economic reasons (BGE 136 II 214 cons. 2.1). Strict requirements are to be imposed on site-specificity in light of the constitutional separation principle (Judgment 1C_109/2014 cons. 6.4).
N. 23 No forfeiture for illegal structures in the non-building zone. Authorities are obliged under federal law to order the demolition of formally and materially unlawful structures outside the building zone. The 30-year forfeiture period applicable within the building zone (BGE 107 Ia 121) does not apply outside the building zone — its application would undermine the separation principle and jeopardise the uniform application of federal law (BGE 147 II 309 cons. 5.5). Good-faith property owners may in individual cases be accommodated by the granting of longer demolition periods or compensation for investments that have been rendered worthless (BGE 147 II 309 cons. 5.6).
N. 24 Zone planning and proportionality. Land use plans regularly interfere with the guarantee of property (→ Art. 26 FC). Amendments to zone plans require «significantly changed circumstances» as a precondition under Art. 21 para. 2 SPA. The Federal Supreme Court exercises restraint in its proportionality review to the extent that the assessment depends on an evaluation of local conditions that cantonal authorities are better placed to assess (BGE 142 I 162 cons. 3.2.2). A differential zoning of plots in direct proximity is in principle permissible in planning law, as the demarcation between zones always requires the drawing of a boundary (BGE 121 I 245 cons. 6e/bb).
N. 25 Right of appeal of associations. Spatial planning decisions that touch upon federal responsibilities (notably new inclusions in the building zone under the revised SPA, building permits under Art. 75b FC) trigger the right of appeal of associations under Art. 12 NHG. Planning authorities and project sponsors must expect appeals from nature and cultural heritage protection organisations and must explicitly take spatial planning interests into account in their weighing of interests (BGE 142 II 509 cons. 3; BGE 139 II 271 cons. 9 ff.).
N. 26 Coordination procedure. For spatially significant projects to which several federal acts apply (e.g. SPA, NHG, FACA, NDG), the coordination procedure under Art. 25a SPA must be initiated. Failure to coordinate leads to the annulment of approval decisions (BGE 137 II 58 cons. 3 ff.; BGE 135 II 22 cons. 1.2). Appeals to the Federal Supreme Court against amendments to land use plans may only be brought after cantonal approval has been granted (BGE 135 II 22 cons. 1.2).
Case Law
#Division of Powers between the Confederation, Cantons and Municipalities
#Basic Distribution of Powers
BGE 142 I 177 of 15 December 2015 The distribution of powers between the Confederation, cantons and municipalities is fundamentally determined by Art. 75 FC. The Federal Supreme Court specifies the division of tasks in the field of spatial planning and finds that municipalities can act autonomously in local spatial planning tasks.
«The collection of a value-added levy corresponds to a legislative mandate to the cantonal legislature provided for by federal legislation (Art. 5 para. 1 SPA) and the cantonal constitution (§ 116 para. 4 KV/BL) [...]. As long as the canton does not exercise its competence to collect a value-added levy, municipalities cannot be prevented from performing this task within their own competence, because it is closely linked to the local planning incumbent upon them.»
#Coordination Requirement of the Confederation
BGE 137 II 58 of 3 December 2010 The coordination requirement pursuant to Art. 75 para. 2 FC requires coordinated planning between all levels of government. The decisive factor is the lack of coordination between operating regulations and sectoral planning procedures for Zurich Airport.
«The authorization of operational and construction changes to the airport with significant impact on space and environment pursuant to Art. 36c para. 2 and Art. 37 para. 5 ALA generally requires the existence of a sectoral plan. This corresponds to the regulation in other federal acts and serves the coordination of spatially relevant activities.»
#Separation Principle and Zone Conformity
#Separation of Building and Non-Building Areas
BGE 147 II 309 of 28 April 2021 The constitutional separation principle pursuant to Art. 75 para. 1 FC requires a clear separation between building areas and non-building areas. The judgment deals with the restoration of the lawful state in case of illegal constructions outside the building zone.
«A 30-year limitation period outside the building zone would in particular call into question the constitutional separation principle (Art. 75 para. 1 FC) and the uniform application of federal law. The factual, legal and interests situation outside the building zone differs so greatly from that within the building zone that a different regulation is imperative.»
BGE 145 I 156 of 31 October 2018 Zone conformity requires an effect-based consideration of the impacts of buildings on neighbouring zones. A border distance between building and agricultural zones was in dispute.
«Based on an effect-based approach, the consequences associated with a building or installation on the environment must also be considered. If impacts on the neighbouring zone are likely, compliance of the project with this zone must also be examined. A residential building directly on the border to the neighbouring agricultural zone is not zone-conforming.»
#Spatial Planning and Economic Freedom
BGE 142 I 162 of 9 November 2016 Spatial planning measures must be compatible with economic freedom. The judgment concerns the permissibility of a tourism zone and its compatibility with Art. 27 and 94 FC.
«The Federal Supreme Court had dealt repeatedly for decades with the compatibility of spatial planning measures with economic freedom [...]. Spatial planning measures can in principle interfere with economic freedom. However, they are permissible if they are based on a sufficient legal basis, serve the public interest, are proportionate and respect the principle of equality.»
#Association Appeal Rights in Spatial Planning Procedures
BGE 139 II 271 of 21 February 2013 The right of associations to appeal in spatial planning procedures presupposes a federal task. The decisive factor was the standing of nature and heritage protection associations to appeal against second home construction.
«The capping of second home construction pursuant to Art. 75b FC constitutes a federal task that serves to protect nature and the homeland landscape. Building permits can therefore be challenged by appeal pursuant to Art. 12 NHA for violation of Art. 75b FC and its transitional and implementing provisions.»
BGE 142 II 509 of 26 October 2016 New zoning under the revised SPA establishes association appeal rights. The judgment clarifies the right of appeal for zoning pursuant to Art. 15 SPA.
«New zoning based on Art. 15 of the revised SPA (in the version of 15 June 2012) is to be qualified as a federal task within the meaning of Art. 78 para. 2 FC. When implementing the federal requirements for economical land use, the cantons must take into account the concerns of nature and heritage protection.»
#Spatial Planning and Energy Law
BGE 149 I 291 of 3 May 2023 Municipal energy initiatives must be compatible with spatial planning principles. The judgment deals with a popular initiative for conversion to renewable energies.
«The objective of the initiative can be understood as a step towards ecologically sustainable development (Art. 73 FC). In principle, neither the guarantee of property rights nor the building law guarantee of existing rights provides a claim to maintain a legal order once in force.»
#Coordination in Complex Spatial Planning Procedures
BGE 135 II 22 of 19 December 2008 Legal remedy decisions must be coordinated with approval decisions. The judgment concerns the coordination between cantonal approval procedures and appeals.
«The Federal Supreme Court generally only considers appeals against changes to use plans if the affected changes to use plans have been approved by the competent cantonal authority. The necessary coordination of the legal remedy decision with the approval decision requires coordinated treatment.»
BGE 135 II 30 of 19 December 2008 Building law preliminary decisions are not challengeable rulings. The judgment clarifies the distinction between preliminary clarifications and definitive decisions.
«General indications and recommendations from building permit authorities do not constitute a decision within the meaning of Art. 82 lit. a FSCA. They do not produce immediate legal effects and are therefore not independently challengeable.»