The Netherlands – Response to Case 2010
INFRASTRUCTURE IN MUNICIPALITIES FROM THE DUTCH PLANNING LAW POINT OF VIEW
Fred Hobma and Regina Koning1
1. INTRODUCTION
The Netherlands have three tiers of government: national government, provinces and municipalities. In 2010, the Netherlands consists of over 430 municipalities, which constitute Dutch local government. Municipalities actually have the most important powers in Dutch spatial planning. Not surprisingly, therefore, the Dutch Spatial Planning Act is characterised by a large measure of decentralisation. The answers to the questions below reflect the strong position of municipalities in the field of spatial planning and infrastructure planning as well.
Before answering the questions in detail, the following two sections of this paper shall touch upon two phenomena we believe have a converging effect on infrastructure decision-making procedures within the European Union. The phenomena are: EU environmental directives and initiatives to speed-up decision-making.
2. EUROPEAN LAW INFLUENCES ON INFRASTRUCTURE PLANNING PROCEDURES
Currently no European Directive on the topic of infrastructure planning procedures exists. Although there are no specific directives for the planning procedures of new infrastructure – and thus we can see considerable differences between member states as for infrastructure planning procedures – all national procedures are quite heavily influenced by the EU environmental directives. Most relevant directives are:
• The Environmental Impact Assessment Directive: for project assessment;
• The Strategic Environmental Assessment Directive: for plan and program assessment;
• The Birds Directive;
• The Habitats Directive;
• The Water Framework Directive: for infrastructures with potential risks of water.
Every member state has to comply with these directives. In the Netherlands the Environmental Impact Assessment is fully integrated in the statutory procedure for infrastructure planning, the Infrastructure Planning Act (Tracéwet).
The environmental directives have procedural and possibly substantive influences on infrastructure decision-making. First, as said before, the infrastructure planning procedures have to comply with the directives. Second, it is possible that application of the environmental directives will have substantiveconsequences for the project. For instance: (a) compulsory environmental assessments that cover alternatives and (b) consultations with the population concerned by the project, may influence the choice of route of an intended project. The EU directives on environment are not restricted to national infrastructure; they may very well stretch out to municipal and inter-municipal infrastructure.
3. SPEEDING UP OF INFRASTRUCTURE DECISION-MAKING PROCEDURES
It is interesting to note that in many European countries governments have felt the needs to speed up the decision-making procedures of infrastructure. Many governments are of the opinion that infrastructure decision-making takes too much time and that new legislation is helpful in solving that problem.
In Germany new legislation to speed up the decision-making process was introduced after the reunification of West and East Germany (1990). Swift construction of new infrastructure in the former DDR was needed. Therefore new legislation was introduced, but only applicable in the new eastern ‘Länder’. Later, new laws declared to apply many accelerating measures to the whole territory of the Federal Republic.2
In the UK, the Eddington Transport Study (2006) pointed out that the planning system for major transport systems ‘has evolved over several decades to the point at which it can impose unacceptable cost, uncertainty and delay on all participants’.3 The report gave impetus to new statutory provisions for improvement of infrastructure planning in the UK: the Planning Act 2008.
In Belgium, the commission-Berx (2010) was asked by the Flemish government to make proposals to break the slowness in decision-making on large infrastructural projects. In its report, the commission recommended many changes to the legal system.4
In the Netherlands, for decades there is an almost continuous debate regarding speeding-up the decision-making process for national infrastructure projects.5 In 1994 this debate led to a whole new act regarding infrastructure decision-making: The Infrastructure Planning Act 1994 (Tracéwet). However, even after implementation of this new act, in practice the need for a better and faster decision-making process remained. Government appointed the commission-Elverding (2008) and asked for advice. The commission concluded in its report that the existing decision-making process, which finds its legal basis in the Infrastructure Planning Act 1994, holds many inefficiencies.6 It is acknowledged by the commission-Elverding that some of the causes of the lengthy decision-making process, have a non-legal nature. This applies, for instance, to flaws in project management. Those causes cannot be addressed with legal measures. Other causes, however, can indeed be addressed with legal measures. This applies, for instance, to statutory limitation of the parties that have a right to oppose against infrastructure decisions before court (i.e. narrowing down parties that have a right to legal standing). The commission recommended important legislative changes which were adopted by government. This will, probably in 2011, again lead to new rules for infrastructure projects.
4. LEGISLATION CONCERNING MUNICIPAL INFRASTRUCTURE
4.1 THREE ACTS RELEVANT FOR MUNICIPAL INFRASTRUCTURE
Question 1 reads:
Is there legislation concerning highways, streets and railroads, tram and metro transportation lines? What is the procedure in that legislation and does it contain documents as planning tools and what body is responsible for this planning?
Question 4 reads:
How is public participation organized?
We shall answer both questions in this section.
There is comprehensive legislation on many aspects of infrastructure, relating to topics such as (1) the ‘concession’ needed by the operator of public transport, (2) safety, (3) traffic rules, (4) use of capacity of the track, (5) tariffs, (6) equipment (rolling stock) etcetera. However, planning law legislation relating to infrastructure being relevant for municipalities is limited to the following three acts:
– the Infrastructure Planning Act (Tracéwet), relating to national infrastructure ;
– the Spatial Planning Act (Wet ruimtelijke ordening), relating to municipal infrastructure;
– the Transport Plan Act (Planwet Verkeer en Vervoer), relating to transport planning.
This section will deal with the Infrastructure Planning Act and the Spatial Planning Act. The Transport Plan Act will be dealt with in the subsequent sections.
4.2 INFRASTRUCTURE PLANNING ACT: NATIONAL INFRASTRUCTURE
PROCEDURES
The act that applies to the planning of national infrastructure is the Infrastructure Planning Act (Dutch: Tracéwet). This act is in effect since 1994. The sphere of effect of the act is restricted tonational infrastructure. That is: the planning of new national motorways, national railways and national waterways. The Infrastructure Planning Act (IPA) does not only relate to plans for new national infrastructure, but also to plans for the modification of existing national infrastructure. With this act, the Minister of Infrastructure and Environment, directs the planning of national infrastructure. This includes national infrastructure that runs through cities and metropolitan areas. However, as we will see, lower bodies of government (especially municipalities) and interested parties (civilians, environmental interest groups) have legally ensured possibilities to influence the decision making.
The Infrastructure Planning Act incorporates relevant aspects of the Environment Management Act (Wet milieubeheer) and the Spatial Planning Act (Wet ruimtelijke ordening). So, the planning of new national infrastructure is interwoven with elements of environment law and spatial planning law.
The Infrastructure Planning Act holds a detailed procedure. In essence, this procedure boils down to a stepwise limitation of possible tracks for new motorways, railways or waterways. Eventually, one alternative solution will result from narrowing down a number of alternative tracks.
Figure: Essential elements of the procedure for new infrastructure
Exploratory Phase
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Track policy Document/Environmental Impact Statement
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Standpoint Minister (=preferred alternative)
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Draft Track decision
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Track Decision
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Coordinated Permit Procedure
PLANNING TOOLS
The most important planning tool in the Infrastructure Planning Act is the track decision. This is the final decision (the choice) for a track by the minister. The Track Decision directly intervenes in the local land-use plan. Indeed, if the Track Decision and the local land-use plan do not agree, the Track Decision counts as a decision to deviate from a land-use plan pursuant article 2.1, paragraph 1, under c, Environmental Licensing (General Provisions) Act (art. 15, para. 6 Infrastructure Planning Act). In that case the Track Decision overrules the local land-use plan.
A track decision may be contested in court (Administrative Jurisdiction Division of the Council of State).
BODY RESPONSIBLE FOR PLANNING
The body that is responsible for the planning of national infrastructure is the minister of Infrastructure and Environment. However, the Infrastructure Planning Act stipulates at many places that the minister has to consult other tiers of government.
PUBLIC PARTICIPATION
During the phase of public consultation regarding the Declaration of Intent every person can react to the Declaration of Intent.7 Usually reactions relate to which possible solutions (alternatives) must be studied and which effects have to be studied.
During the phase of public consultation regarding the Track Policy Document/Environmental Impact Statement it is possible for the public can react to the documents. Crucial questions during public consultation are: (a) Is the environmental information correct and complete to base a decision on? (b)Which of the alternatives is preferred by the public participants and why?
During the phase of public consultation regarding the Draft Track Decision the affected lower governments (municipalities, provinces, water boards) but also private persons, organisations and special interest groups can put forward their ‘views’ on the Draft Track Decision. The views will be addressed to the minister.
4.3 SPATIAL PLANNING ACT: MUNICIPAL INFRASTRUCTURE
PROCEDURES
Roads, streets, railways, tramlines and metro lines that are purely municipal, are not subject to the Infrastructure Planning Act. The ‘normal’ planning law is applicable to municipal infrastructure. This is the Spatial Planning Act (Wet ruimtelijke ordening). Decision-making on municipal infrastructure is part of the municipal autonomy; in principle there is no involvement of other tiers of government. The legally binding plan in which tracks will be recorded is the land-use plan (bestemmingsplan).
The procedure of a land-use plan is the most comprehensive procedure of all plans in the Spatial Planning Act. This is due to the fact that the land-use plan has direct legal binding effects towards citizens, organizations and governments. The binding effect results from the link between land-use plan and environmental permits8: applications for environmental permits need to be in agreement with the land-use plan. For these reasons, the land-use plan procedure has three important characteristics:
(1) Democratic legitimisation in the form of adoption of the land-use plan by the Municipal Council (which indeed are the directly chosen representatives of the people on the municipal scale). This is laid down in article 3.1 Spatial Planning Act, paragraph 1. Herewith it is democratically determined that the plan is for the public good.
(2) Legally established possibilities for affected citizens or organizations to influence the contents of the plan. This will be elaborated under ‘Public participation’.
(3) Final judicial settlement by the independent administrative judge. This refers to the aforementioned right to lodge appeal. An important feature is that the final word about the oppositions against a land-use plan is not with an administrative body or with politicians, but with the independent administrative judge: the Administrative Jurisdiction Division of the Council of State (Dutch: Afdeling bestuursrechtspraak van de Raad van State).
PLANNING TOOLS
The legally binding planning tool for municipal infrastructure is the land-use plan (bestemmingsplan).
Body responsible for planning
The body responsible for planning is the municipal council. They are the directly chosen representatives of the people in the municipality.
PUBLIC PARTICIPATION
The Spatial Planning Act holds legally established possibilities for affected citizens or organizations to participate:
• involvement of citizens and societal organisations in the preparation of a land-use plan (art. 3.1.6 Spatial Planning Decree);
• submitting views ( zienswijzen) against the draft land-use plan. This is laid down in article 3.8, paragraph 1, sub d, Spatial Planning Act: ‘any person may express their views on the draft to the Municipal Council’;
• interested parties have the right to lodge appeal against the adoption of the land-use plan by the Municipal Council. This right is granted in the General Administrative Law Act (Algemene wet bestuursrecht).
5. REGIONAL INFRASTRUCTURE IN THE NETHERLANDS
5.1 CHALLENGES OF REGIONAL INFRASTRUCTURE IN THE RANDSTAD
From a planning law point of view regional infrastructure is especially interesting in an area in the Netherlands which is densely populated and the center point of economic activities: the Randstad. The Randstad is a conurbation that accommodates around two-thirds of the Dutch population. Mobility and accessibility are key issues in this area and with that the (re)construction of infrastructure. In this respect the Helsinki area and the Randstad have many similarities.
It is a challenge to combine infrastructure planning and urban planning in metropolitan areas in the Netherlands. Too often in the past, infrastructure for public transport and urban extensions were planned apart from each other. This caused problems, such as new urban areas without timely existence of public transport, causing new inhabitants to use cars for their transport. It is a question of planning to let infrastructure for public transport and urban development mutually profit from each other. Sound planning results in enough users for a solid financial operation of public transport lines on the one hand; on the other hand it results in an alternative to car use for inhabitants.
TRANSGRESSING (ON THE LEVEL OF MUNICIPALITIES) INFRASTRUCTURE
(Re)construction of infrastructure in the Randstad is complex and such projects encounter structurally difficulties with planning, financing and legislation. Many of these problems are instigated by the transgressing nature of these projects. Municipalities have to cooperate intensively. In the Randstad-region two rather recent projects can be taken as an example: de Rijn-Gouwelijn and the RandstadRail. Both projects will be described briefly and hereafter be discussed more extensively by answering the case-questions.
5.2 TRANSPORT PLAN ACT
Question 2 reads:
How do roads and rails comply with land use planning of a region and of a municipality?
Question 3 reads:
What is the role of a single municipality and its needs in these matters?
In this part the most important planning tool on regional level is discussed: the Transport Plan Act (Planwet Verkeer en Vervoer). Given that the plans under this Act have no formal legal binding, this section emphasizes on the effect of these plans in spatial planning, in particular land-use plans and imposed land-use plans. 9
TRANSPORT PLANS The Transport Planning Act seeks to regulate the relationship between the three tiers of government (central government, provincial and municipal) in the field of traffic and transport. The law provides for this purpose the procedure of formation of transport plans and the key elements of successively the national transport plan, the provincial transport plan and municipal transport planning policies. There is also a mechanism for so-called regional public bodies referred to in Article 104 of the Joint Arrangements Act (Wet gemeenschappelijke regelingen). Furthermore, a provision is made in case an administrative body elaborates the essential elements of the national or provincial plan insufficiently. Separate attention is paid in the Transport Planning Act to the consultation at national and provincial level for the coordination of traffic and transport policy and its implementation. It also applies to the instrument of the administrative agreement as an instrument to agree on a mutual coordinated application and based on that, to call each other to account.
Under the Transport Planning Act the central government and provincial government are obligated to draw up a Transport Plan. At national level it is called the Policy Document on Mobility and at provincial level the Provincial Transport Plan (PTP). Municipalities can establish Municipal Transport Plans, but in principle are not obligated to do so. Art. 2 (national), Art. 5 (provincial) and Art. 8 (municipality) of the Transport Planning Act indicate the purpose of a Transport Plan: it gives direction to decision-making in the area of traffic and transport.
Art. 16 of the Transport Planning Act obligates also the board of a regional public body (under Article 104 Joint Arrangements Act) to draw up a transport plan: referred to as a Regional Transport Plan. This plan gives direction to the decision-making concerning traffic and transport in the region.
The Joint Arrangements Act contains in chapter XI a facility on a special form of inter-municipal cooperation (intergemeenschappelijke samenwerking) around cities: regarded to as urban regions (plusregio’s). Within these regions cooperation is obligated in order to address the complex policy challenges in the area of (among other aspects) transport, which occur in and around cities. Article 104 Joint Arrangements Act constitutes the meaning of an urban region: a regional public body with statutory functions which is established at the invitation of the Provincial Executive by the executives of municipalities in an area with urban characteristics in joint agreement for the purpose of resolving regional coordination issues. The existing urban regions so far are:
– Amsterdam Regional Body
– The Haaglanden Urban District – Rotterdam Urban Region
– Regional Collaboration Eindhoven
– Twente Region
– Arnhem-Nijmegen Nodal Point
– Administration Utrecht Region
– Parkstad Limburg
To solve mobility problems in urban areas, cooperation between tiers of government is necessary. A good example of successful cooperation within the urban regions of The Hague and Rotterdam (urban regions The Haaglanden Urban District and Rotterdam Urban Region) is RandstadRail. Because of the well-organised cooperation between tiers of government, this project is carried out rather fast (though the administrative complexity also caused delay in the decision-making). An Urban Region (or City Region) is a hybrid between a municipality and a province with its own tasks, powers and budgets. All municipalities within the Urban Region are required to participate in decisions of the partnership. The Province can order municipalities which refuse to cooperate, to participate in the Urban Region.
Lame duck?
In the new Spatial Planning Act of 2008 the Urban Regions under the Joint Arrangements Act would be empowered to draw up structure visions (chapter 5 of the Spatial Planning Bill entitled ’Inter-municipal cooperation in urban areas’). However, the amendment Nepperus / Van Heugten (TK 30 938, No. 13) has led to cancellation of this chapter which means that, for the time being, the existing Urban Regions have no power within spatial planning. This made the whole planning policy at regional level as perceived powerless. This view has to be put into perspective though. The structure vision is just a policy rule which contains no binding components such as the regional plans under the old Spatial Planning Act (before 2008) and therefore has minimal legal power. As for transportation or mobility aspects the instrument of the Regional Transport Plan still exists (art. 16 Transport Planning Act) that effects the PTP from which the province can exert pressure through an Imposed Land-use Plan (see the section below on Effect of Transport Plans on Spatial Planning). Provinces can delegate powers to the administration of Urban Regions under art. 107 of the Provinces Act. This may increase the administrative power of Urban Regions significantly. In consultation between the province and an urban region agreements can be made. Of course the province is ultimately responsible for the decision whether and how provincial powers are delegated. The status of Urban Region does not automatically mean that tasks and/or funds are delegated by the province. Customization is desirable because the situation may vary by region.
HIERARCHY OF TRANSPORT PLANS
The Transport Planning Act provides essential parts of the national transport plan traffic and transport plan (Policy Document on Mobility) should be respected in the Provincial Transport Plan. This means that provinces are required to take over the essential parts in their Transport Plan. If the Province omits to this stipulation the Minister may give an instruction concerning the contents of the Provincial Transport Plan. In this way the effect of the Policy Document on Mobility on the Provincial Transport Plan can be assured. In case of an Urban Region, the administration of the Urban Region must comply with the essential elements of the national traffic and transport plan, the essential elements of the Policy Document on Mobility and the relevant Provincial Transport Act(s). Regarding the latter that is the case as far the essential elements relate to supra-regional cohesion.
A similar scheme is recognized in the Transport Planning Act for the effect of national and provincial transport plans to the municipal transport policy. Municipalities are, under the Transport Plan Act, not required to draw up a transport plan. The only objective is their transport policy should be visible. That policy should comprehend the essential elements of the Policy Document on Mobility and respective Provincial Transport Plan. Another consideration should be given to the transport policies of neighbouring municipalities.
In case of negligence of a municipality in conducting a visible transport policy, the Province may instruct the municipality to draw up a Municipal Transport Plan. In drawing up the transport plan the most interested administrative bodies must be involved. This includes at least the provincial executive of the province, the Burgomaster and Alderman of the adjacent municipalities, water board and, where appropriate, the Minister. Concerning the essential elements of the Provincial Transport Plan, the province can give an instruction if a municipality fails to include the essential elements in its transport plan.
CONSULTATION AND COMMUNICATION
The Transport Plan Act pays explicit attention to the importance of good communication between the various authorities and tiers of government. Infrastructure and its construction usually has a trans boundary character as a result of which coordination and consultation is so essential. In consequence the Transport Plan Act specifies (Article 12) that in view of the carrying out of transport plans, transport management agreements may be concluded that include the need for a transport plan. Note that there is no obligation to do so. Under Article 13 transport consultation has to take place to reach mutual coordination between the central government, provinces and municipalities.
PUBLIC INSPECTION TRANSPORT PLANS
Public participation in the development of transport plans is provided in the Transport Plan Act. For provincial and municipal plans, section 3.4 of the General Administrative Law Act has to be applied which stipulates that draft plans should be available for inspection. During the period of inspection, interested parties may submit views. These views have to be motivated by the Authority whether or not they are included in the final plan.
EFFECT OF TRANSPORT PLANS IN SPATIAL PLANNING
Before the new Spatial Planning Act came into force in 2008 the Transport Plan Act and the old Spatial Planning Act both contained a coordination or harmonization scheme (the so called leap-frog-construction, in Dutch: haasje-over-constructie). This means in the Provincial Transport Plan should be included to what extent and how the provincial structure plan should be adjusted as a consequence of the Provincial Transport Plan policies. In the (old) Spatial Planning Act a similar mirror provision was included: in the amended structure plan should be included to what extent and how the Provincial Transport Plan should be adjusted. Because this structure was found not to be used10 (the leap frog of plans) this construction was not included in the new Spatial Planning Act. The current state of affairs is that the effect of transport plans in spatial planning is unilateral regulated by the Transport Plan Act.
The coordination of Provincial Transport Plans in spatial planning is regulated in article 5 paragraph 5 of the Transport Plan Act. It reads as follows:
“The Provincial Council indicates in the plan at least to what extent the proposed policy leads to adjustment of the provincial land use policy or the provincial environmental policy and how and in what time they intend to review one or more existing structure visions as referred to in Article 2.2 of The Spatial Planning Act, the applicable provincial environmental policy, referred to in Article 4.9, first paragraph, of the Environmental Management Act or the applicable regional water plan, referred to in Article 4.4 of the Water Act.”
The Provincial Transport Plan should indicate the extent and in what time the Provincial Council intends to review one or more current structure visions.
For Municipal Transport Plans a somewhat similar provision is included in art. 10 paragraph 3 of the Transport Plan Act:
“As far as municipal transport policies have implications for spatial policy in general, the City Council, respectively, Burgomaster and Aldermen have to indicate in all events the period within which the designated procedures based on the Spatial Planning Act will be started.”
Provincial Transport Plans are therefore not considered equal to provincial structure visions under the Spatial Planning Act. Art. 5 Transport Plan Act does not oppose to the possibility that the Provincial Council simultaneously decides with the adoption of the Provincial Transport Plan which elements shall be considered as a structure vision under the Spatial Planning Act or, if parts of a Provincial Transport Plan have as a result a provincial structure vision is outdated, that those parts also constitute a amendment of the provincial structure vision.
Regarding the legal binding of structure visions, the legislature intended to be clear in the Spatial Planning Act: The nature of these visions are indicative only and have no legal binding. However, this is being questioned in literature. Some authors argue that structure visions at least have some legal relevance under the principles of duty to give reasons (motivatiebeginsel) and of legitimate expectations (vertrouwensbeginsel). Furthermore, the authors emphasize that the Spatial Planning Act makes no explicit connection between the structure vision and the exercise of powers under the Spatial Planning Act. For example, the requirement of a good reasoned planning exemption (see article 3.10, article 3.27 and 3.28 Spatial Planning Act) doesn’t have a link in the Spatial Planning Act with the structure vision (in the sense that a structure vision is the designated reasoned planning exemption). However the authors consider it to be conceivable that the administrative judge, in his assessment whether or not the planning decisions have a proper reasoned planning exemption, will make such a connection.11
What is a Good reasoned planning exemption?
The reasoned planning exemption includes the weighting of the initiative (in case of a derogation from a land-use plan for a specific project) or intervention (in case of an imposed land-use plan, general rule or instruction) and the spatial feasibility of it. The structure and depth of the reasoned planning exemption must be attuned to the (drastic) nature and complexity of the proposed project. Structure visions and transport plans can be used as a reasoned planning exemption (provided the reasoned planning exemption complies with requirements of the Spatial Planning Degree).
THE EFFECT OF TRANSPORT PLANS IN LAND-USE PLANS AND IMPOSED LAND-USE PLANS
The land-use plan is the most important spatial plan which binds citizens directly. This spatial plan is the central instrument in the Spatial Planning Act. Besides this plan, since the implementation of the new Spatial Planning Act in 2008, the central government and Provincial Council are empowered to established, so-called imposed land-use plans. These plans can be adopted to the exclusion of the competence of the municipality. In the imposed land-use plan, the central government or the Provincial Council have to indicate the national or provincial interests. In the event of a National imposed land-use plan the concerning province and municipalities have to be consulted. In case of a provincial imposed land-use plan, the concerning municipality has to be consulted.
The Transport Plans are policy documents and have little legal force (compared to a land-use plan and imposed land-use plan which have strong legal force). Indirectly though Transport Plans do have some legal force. For example, when an (imposed) land-use plan is drawn up containing an (unmotivated) conflict with the transport plan or policy. In that case the (imposed) land-use plan can be (partly) nullified in a judicial proceeding because the land-use plan did not meet the requirement of a good reasoned planning exemption (to be regarded as a lack of reasoning obligated by art. 3:4 of the General Administrative Law Act). Transport Plans only have an indirect effect in spatial policy. Yet, this should not be underestimated. Provinces can use the instrument of imposed land-use plans in case a municipality acts in an obstructive way concerning the provincial and/or regional transport plans. An example is the Rijn Gouwe Lijn in which case the province threatened to use an imposed land-use plan to force one of the municipalities to participate in the project (as previously agreed in administrative agreement, management agreements, etc.).
THE EFFECT OF TRANSPORT PLANS ON A GENERAL RULE AND ON AN INSTRUCTION
Provinces and the central government have two more instruments on hand to intervene in spatial planning of municipalities. Under the law, the minister (central government) and the provincial council may lay down general rules on the content of a land-use plan and an environmental license for exceptions to a land-use plan (Article 4.1 paragraph 1 and Art. 4.3 paragraph 1 of the Spatial Planning Act). These general rules are laid down by provincial ordinance or (by the Minister) through an Order in Council. Under Art. 4.2 paragraph 1 and Art. 4.4 paragraph 1 of the Spatial Planning Act, the Provincial Executive and the Minister may give an instruction to the municipal council to adopt a land-use plan which conforms to the related regulations governing the contents of plan. These are two powerful provincial powers that are not unreserved to be deployed. In the Spatial Planning Act the condition is set out that general rules and instructions may only be given in case of provincial interests and if it’s necessary to ensure a good reasoned planning exemption. It is clear inter-municipal infrastructure may be regarded as a provincial interest. For a good reasoned planning exemption the structure vision of the province and the provincial transport plan is of great importance. These can serve as an underlay for the reasoned planning exemption.
Also in case of general rules and instructions Transport plans have an indirect effect on these spatial planning powers of the minister and provinces. In particular, the structure vision can be considered as an appropriate reasoned planning exemption (supporting general rules and instructions). It is therefore important provinces bring their structure vision in line with the Provincial Transport Plan and vice versa. When these plans contain conflicting information it might be difficult to meet the requirement of a good reasoned planning exemption. Objectors can claim successfully at the administrative court the general rule or instruction had no good reasoned planning exemption because of conflicting policies.
THE EFFECT OF TRANSPORT PLANS ON A REACTIVE INSTRUCTION
Under Article 3.8 paragraph 6 Spatial Planning Act, the Minister and the provincial executive have another tool available to intervene in a land-use plan adopted by municipalities: the reactive instruction. If the Provincial Executive or the Minister made objections against a draft land-use plan or draft environmental license for exceptions to a land-use plan and in the land-use plan no attention is paid to these objections, the provincial executive or the Minister can give a reactive instruction as a result of which the land-use plan can’t (partly) come into force. The condition of a good reasoned planning exemption also applies for a reactive instruction. Art. 3.8 paragraph 6 Spatial Planning Act provides an additional condition: that in the case concerning the other powers of intervention could not be used or do not comply.
Footnotes:
1. Fred Hobma LL.M., Ph.D. is associate professor of planning law at Delft University of Technology, theNetherlands. Regina Koning LL.M. is scientific associate at the Dutch Institute for Construction Law, The Hague, theNetherlands.
2. Ch.W. Backes, E. Chevalier, A.M.L. Jansen, M.E. Eliantonio, M.A. Poortinga, R.J.G.H. Seerden. Snellere besluitvorming over complexe projecten vergelijkend bekeken (‘Faster decision-making on complex projects from a comparative viewpoint’). Appendix to: Second Chamber of Parliament, document 31731, nr. 5, p. 48.
3. Sir Rod Eddington, The Eddington Transport Study. The case for action: Sir Rod Eddington’s advice to government. Norwich (Her Majesty’s Stationary Office) 2006, p. 56.
4. Commissie Investeringsprojecten (commissie-Berx), Naar een snellere en betere besluitvorming over complexe projecten (‘Towards faster en better decision-making on complex projects’), 2010.
5. For an overview of this debate, see F.A.M. Hobma, Rijkswegen en ruimtelijke ordening (‘Trunk roads and spatial planning’). Delft (Eburon), 2000, p. 17 et seq.
6. Commissie-Elverding, Sneller en beter. Advies van de Commissie Versnelling besluitvorming infrastructurele projecten (‘Faster and better. Advice from the Commission Speeding up decision-making infrastructure projects’), 2008.
7. The Declaration describes the traffic and transport problem. It gives a first idea of alternatives to be studies to solve the problem. Furthermore, it suggests effects (on accessibility, environment etc.) of these alternatives that have to be studied.
8.Since 1st of October 2010 the Netherlands integrated many permits, amongst others the building permit, in a new permit: the environmental permit.
9. In case of an imposed land-use plan, the province or national government takes over the power to adopt a land-use plan from a municipality.
10.See the Opinion of the Evaluation Committee Environmental Management Act titled: “Provincial environmental planning. On horizontal coordination between provincial plans and the development of environmental plans”, ECWM 2003/13, p. 4.
11.See Prof. mr. P.J.J. van Buuren, Mr. A.A.J. de Gier, Prof. mr. A.G.A. Nijmeijer, Mr. J. Robbe, Van WRO naar Wro, IBR: ‘s-Gravenhage 2008, p. 9 en 10.