The Netherlands – Response to Case 2008
Introduction
The questions to be answered for the Amberes case are very recognizable for Dutch practitioners of Planning Law. In the Netherlands, there are many cases similar to Amberes. To give an impression, at end of 2007, the number of potentially heavily polluted locations is estimated at 270.000!
From a legal viewpoint, the questions to be answered partially fall under the domain of Planning Law and partially under Environmental Law. Questions 1 and 2 belong to Environmental Law. Question 3 belongs to Planning Law. In the Netherlands, these two domains are separated, although, of course, there are links between them. However, Planning Law and Environmental Law each have their own legislation. The coordination between Planning Law and Environmental law proves to be not always easy.
As far as Planning Law is concerned, a new Spatial Planning Act came into force very recently: July 1st 2008. The new Dutch Spatial Planning Act was the topic of last years International Conference of the Platform of Experts in Planning Law. The questions will be answered following the new act.
1. What kind of regulation or case law exists in your country when a polluted site must be decontaminated, and the owner (who to simplify matters is also the author of the pollution) is bankrupt and unable to pay for the clean up?
The decontamination of polluted industrial sites falls under the Wet bodembescherming (‘Soil Protection Act’). This act, into force since 1986, is a typical sectoral Environmental law: it only looks after the aspect of soil protection. This act holds a duty to decontaminate (art. 43). That is, an obligation to directly decontaminate exists if the province or municipality has come to the conclusion that the site must be decontaminated immediately. The principle is that the companies pay for the decontamination. However, this duty is combined with a subsidy scheme. (This is typical Dutch approach: the combination of an obligation and a subsidy.) The subsidy scheme has the legal form of an Order in Council. It is the Besluit financiële bepalingen bodemsanering (‘Decree financial stipulations soil decontamination’). This order in council allows for a subsidy that partially covers the costs of decontamination.
However, in the Amberes case, the corporation that owns the site has been declared bankrupt and is unable to pay for the cleanup. In such situations it is common that the municipality will buy the land from the owner, taking into account the pollution (better: the estimated costs of decontamination). Subsequently, the municipality will clean up the land on its own expense. This approach is accepted and not seen as in conflict with European law on the subject of state aid.
2. Is the new plan/development and environmental impact assessment an easy or difficult procedure? Does it require a lot of time? Is it expensive?
An environmental impact assessment in the Netherlands is seen, by most persons involved, as a difficult procedure. This is because the Besluit milieueffectrapportage (‘Enviromental Impact Assessment Decree’) is quite complicated due to the many steps that have to be taken. The total time of an EIA easily mounts up to one and a half year. It will take even more time if the administrative judge comes to the conclusion that the ‘environmental impact statement’ (Dutch: milieueffectrapport) is of an insufficient quality. In that case, the environmental impact statement has to be redone.
In this respect we must realize that the Dutch regulation on Environmental Impact Assessment goes further than what is obliged on the basis of European Law (the ‘Directive on the assessment of the effects of certain public and private projects on the environment’). Main different points are the requirements of advising by an independent Commission of experts (Dutch: Commissie m.e.r.) and of an environ¬mental scoping procedure on at least two alternatives. The Dutch system requires (until now) more than the European directives do. In the Netherlands there are initiatives however to minimize these extra’s, those initiatives are mainly based on economical reasons.
It is the initiator of a project who has to pay for the ‘environmental impact statement’. This is laid down in article 7.9 of the Dutch Wet milieubeheer (‘Environmental Management Act). It is not easy to say what an environmental impact statement costs; it will depend on the type of project and the number of alternatives in the scoping phase. But it will surely cost many thousands euro’s.
As far as the conservation zone is concerned: indeed, following the Natuurbeschermingswet (‘Nature Conservation Act’), new activities (the industry) can only be allowed if can be demontrated that there will be no disturbing effects on the conservation zone.
3. Who has a legal standing to bring challenges to zoning decisions? At which stage of the zoning procedures can those challenges be brought? What is in general the scope of judicial review, and what remedies can be ordered? If the court finds a zoning process or decision illegal, can in nevertheless let it stand and allow only for damages to be paid?
Legal standing
‘Interested parties’ (Dutch: belanghebbenden) have a legal standing: they can appeal against zoning decisions in a land-use plan with the ‘Afdeling bestuursrechtspraak van de Raad van State’ (‘Administrative Jurisdiction Division of the Council of State’). So, there is no actio popularis. The ‘General Administrative Law Act’ (Dutch: Algemene wet bestuursrecht) describes in general terms who can be considered to be an interested party. According to article 1.2 of this act, an interested party is the one who has a direct interest in a decision. This general description implies that per concrete case it has to be determined who are the interested parties. Criteria have been developed in case law. Not only individuals, but also special interest groups as mentioned in the Amberes case description, have a legal standing, as long as they can be considered to be an interested party. Interesting to note is, that in the Netherlands recently there is a movement to limit the circle of interested parties, that is, fewer parties are seen as interested parties.
Stage of challenges
Dutch law holds two and sometimes three stages of challenging zoning decisions of a land-use plan.
(1) Pre draft land-use plan phase.
Municipalities have the freedom to adopt an ordinance/bye-law (Dutch: verordening) which offers the public ‘consultation’ (Dutch: inspraak) in relation to the pre-draft of a land-use plan. These are so called ‘Public consultation ordinances’, based on article 150 of the ‘Municipalities Act’ (Dutch: Gemeentewet). However, as stated, a municipality is free not to have such an ordinance.
(2) Draft land-use plan phase.
Once a draft of a land-use plan is made available for consultation, everybody has the right to bring forward his ‘opinions’ (Dutch: zienswijzen indienen). This is laid down in article 3.8, section 1, under d, Spatial Planning Act. Here we find a difference between the parties having a legal standing in the draft land-use plan phase and the land-use plan phase. In the draft land-use plan phase there is the possibility to bring forward views for ‘everybody’. In the land-use plan phase, the possibility to lodge appeal is limited to the smaller group of ‘interested parties’.
(3) Land-use plan phase.
Once a land-use plan is adopted by the municipal council, interested parties have to power to lodge appeal with the Administrative Jurisdiction Division of the Council of State’ (Dutch: Afdeling bestuursrechtspraak van de Raad van State).
Scope of judicial review
The administrative judge (the Afdeling bestuursrechtspraak van de Raad van State) reviews if the decision of the administrative body (i.c. the municipal council, who adopted the land-use plan) is in agreement with the law in force. This is a review of ‘rechtmatigheid’ (‘lawfulness’) of the decision to adopt the land-use plan. An assessment of lawfulness means that the decision is tested against:
(a) the ‘algemeen verbindende voorschriften’ (‘general binding regulations’) like acts and Orders in Council,
(b) against the so called ‘algemene beginselen van behoorlijk bestuur’ (‘general principles of proper administration’) like the ‘gelijkheidsbeginsel’ (‘principle of equal treatment’), the principle that equal cases should be treated equally by government.
So, the decision is reviewed on its legal merits.
The administrative judge does not have the power to judge if the decision of the administrative body is the right policy decision. The judge thus cannot review the municipal decision on its political, economic or financial qualities. However, ‘lawfulness’ also implies that a ‘proper weigh of interests’ (Dutch: behoorlijke belangenafweging) must have taken place by the administrative body in reaching a decision. This follows from article 3.4, section 1, of the General Administrative Law Act. So, the administrative body must have weighed up the different interests properly. Furthermore, article 3.4, section 2, General Administrative Law Act, stipulates that the negative consequences of an administrative decision for one or more parties should not be disproportionate to the objects achieved by the decision. This implies, all in all, that the review of lawfulness also implies a review of policy aspects, albeit a very reserved (‘marginal’) check.
Remedies
Several remedies exist (chapter 8.2.6 General Administrative Law Act). Is the appeal is declared unfounded (Dutch: ongegrond), then the appeal will be dismissed. Is the appeal declared (partially or wholly) well-founded, than the administrative decision must be (partially or wholly) nullified. Then there are several possibilities:
-Usually the judge orders the administrative body to take a new decision.
– Another possibility is that the judge decides that his judgment replaces the (part of the) decision that he nullified. This is only appropriate if after nullification there is, in fact, no freedom (for the municipality) to take another decision than the judge’s decision.
– If the court finds an appeal well-founded and nullifies a decision, it can, on request of the appellant, grant compensation to the appellant, at the expense of the administrative body. As said, this can be done on the condition that the decision is (partially or wholly) nullified. Thus, the court cannot let the decision stand and allow only for damages to be paid. It is possible that the court decides that the legal consequences (Dutch: rechtsgevolgen) stay intact, despite the (partially or wholly) nullification of the decision. However, this is rare. An example is given by Alders: a permit has been granted wrongfully, but meanwhile the act has been changed, and in case of a new application, the permit indeed could be granted.
Fred Hobma en Loes Schutte-Postma, The Netherlands