Failed to submit a view? An appeal of an interested party against an environmental or spatial planning decision is nevertheless admissible

With this judgment of 14 April 2021, the Administrative Jurisdiction Division of the Council of State applied the ‘Pigs in Distress’ judgment of the Court of Justice of the European Union (in Dutch: ‘Varkens in Nood’-arrest). The Division also ruled that submission of a view that is limited to only certain parts of a draft decision no longer precludes an appeal against the entire decision.

This precedent applies – pending action from the legislature – not only to Aarhus-decisions, but to all decisions to which the uniform public preparatory procedure applies and which are taken pursuant to:

• Environmental Law (General Provisions) Act
• Environmental Management Act
• Spatial Planning Act
• Tracé Act
• Noise Pollution Act
• Nature Conservation Act
• Earth Removal Act
• Water Act
• Soil Protection Act
• Aviation Act
• Mining Act
• Nuclear Energy Act
• Air Pollution Act
• Antarctic Protection Act
• and other laws and regulations in the area of the environment and spatial planning.

In short, this precedent covers the entire range of environmental law: from a decision on the construction of a nuclear reactor to the construction of a house in violation of the zoning plan.

Previous history: the ‘Pigs in Distress’ judgment

The case has a long history. At the end of 2018, the District Court of Limburg posed preliminary questions to the Court of Justice of the European Union (“ECJ”) concerning the tenability of, inter alia, Article 6:13 of the Awb in light of the Aarhus Convention (see our blog and Advocate General Bobek’s opinion in this case). On 14 January 2021, the judgment of the ECJ followed. That judgment contains principles that are important for the application of Dutch administrative procedural law to decisions covered by the Aarhus Convention (“Aarhus decision”).

In short, the ECJ ruled that participation in the public participation procedure by a non-governmental organization, which is part of the public concerned (that is: interested parties), may not be a condition for access to a court over an Aarhus decision. In other words, even if you have not submitted a view, the administrative judge must hear an appeal against an Aarhus decision.

In practice, an important remaining question was: to exactly whom, and to exactly which decisions, does the rule from the ‘Pigs in Distress’ judgment apply? The Division has now answered that question; the rule applies to all interested parties (at least), and it applies – for the time being – to all decisions that are based on laws and regulations in the area of the environment and spatial planning, insofar as the uniform public preparatory procedure applies.

What was at stake in this case?

The case revolves around a zoning plan of the Almelo City Council. A number of residents filed an appeal. The Almelo council took the position that the appeal of several appellants was inadmissible as they had not submitted any views on the draft of the zoning plan. The appellants saw things differently and relied on the judgment of the Court of Justice: failure to present views did not prevent an appeal from being admissible.

How does the Division rule?

The Division followed the appellants and ruled for the sake of legal certainty – pending legislation – to apply the precedent from the ‘Pigs in Distress’ judgment generously.

To whom does the rule from the ‘Pigs in Distress’ judgment apply?

The appellant in the ‘Pigs in Distress’ judgment was a non-governmental organization. However, the Division noted in its ruling that the Court’s ruling on access to justice is not limited to non-governmental organizations, but refers to the “public concerned” defined in the Aarhus Convention. The Division concludes that “in any case, the right of interested parties” to appeal may not be made dependent on participation in the uniform public preparatory procedure (section 3.4 of the Awb). Moreover, this applies not only to the right of appeal as such, but also to rule that you can only appeal against parts of the decision to which you submitted an earlier view. The latter implies that submission of a view that is limited to only certain parts of a decision no longer precludes an appeal against the entire decision.

Which decisions are involved?

Due to conflict with the Aarhus Convention, therefore, article 6:13 of the Awb cannot be invoked against interested parties who have not submitted a view. However, it must first be established that the appeal is actually directed against an Aarhus decision – and this, as it turns out, is not always easy.

In short, there are two categories of Aarhus decisions. The first category mainly includes decisions concerning activities in the sphere of spatial planning, and permits for which an environmental impact report (“EIR”) or EIS assessment must be made. Whether such an obligation exists often depends on several specific circumstances of the case. The second category of Aarhus decisions includes other decisions concerning activities that may have significant effects on the environment. According to the Division, these can be decisions for which an appropriate assessment must be made due to the location near a Natura 2000 area or decisions for which a preliminary assessment must be carried out to map out the consequences for a Natura 2000 area.

Why does the Division now consider that the rule from the ‘Pigs in Distress’ judgment applies to all environmental and spatial planning decisions?

The scope of the Aarhus Convention is not easy to define in advance. To avoid uncertainty over when article 6:13 Awb can and cannot be invoked against interested parties, the Division arrived at a solution that provides clarity for legal practice.

This means that in all cases where the extensive public preparatory procedure has been applied in environmental and spatial planning cases, Section 6:13 of the Awb will no longer be invoked against interested parties. This applies in all cases to decisions based on the legislation listed above.

With this generous application, the Division wants to prevent the right of access to a court from being interpreted too narrowly. However, the Division did emphasized that it is up to the legislator to come up with a solution.

What does this ruling mean for practice?

First of all, this ruling brings clarity. After the ‘Pigs in Distress’ judgment, it was sometimes difficult to determine in which cases interested parties could be declared inadmissible in their appeal if they had not previously submitted any views. This is now clear: interested parties in environmental and spatial planning decisions may lodge an appeal with the court, even if they have not submitted a view on a draft decision. This clear precedent prevents discussions and procedures about admissibility. This benefits legal practice.

On the other hand, this ruling makes the development of projects less predictable. Only when the appeal period against a decision has expired can initiators and administrative bodies know with certainty that there will be no procedure. This concerns not only projects with a potentially significant environmental impact, but also decisions with little or no environmental impact, based on the above ruling.

Finally, it is important to note that this case concerned proceedings at first and only instance. Whether the outcome would be the same in appeal proceedings against a judgment of the District Court dating from before the ‘Pigs in Distress’ judgment (or perhaps before this judgment) remains very much in question.

In any case, it is now up to the legislator. The Division explicitly calls on the legislator to act. We will keep a close eye on how the legislator deals with the consequences of the ‘Pigs in Distress’ judgment and this significant ruling.

A Dutch translation of this blog can be found here.