In a ruling(ECLI:NL:RVS:2017:2271) of August 23, 2017, the Administrative Law Division of the Council of State (further: the Division) fleshed out the criterion of "consequences of some significance. This criterion plays a role in the question of who is an interested party in disputes about environmental law decisions.
What was going on?
These proceedings concerned a dispute over a manure basin in Limburg. Several local residents had requested the Municipal Executive of the municipality of Gulpen-Wittem to take enforcement action against the manure basin. The admissibility of the request for enforcement depends on whether a local resident qualifies as an interested party within the meaning of the General Administrative Law Act. Given the scope and nature of the activities in relation to the limited complaints about odor nuisance, the college ruled that local residents who lived at a distance of more than 250 meters from the manure basin could not be considered interested parties. The court followed the college's opinion.
Department provides explanation of interest
The Division sees reason in these proceedings to clarify its line of jurisprudence with regard to interested parties. Practice needs this, according to the Division.
The Division indicates in this ruling that the basic principle is that the person directly affected by actual consequences of an activity that a decision authorizes is, in principle, an interested party in that decision. However, according to the Division, those actual consequences must represent something. Therefore, for some years now, the Division has used the criterion "consequences of some significance" as a correction to this starting point.
The Division explains in this ruling that consequences of any significance are lacking if the consequences of the activity for the residential, living or business situation of a person involved are so minor that a personal interest in the decision is lacking. The factors of distance to, view of, planning impact of and environmental consequences (such as odor, noise, light, vibration, emission, risk) of the activity play a role here. The nature, intensity and frequency of the actual consequences may also be important. This means that the circle of interested parties depends on the nature of the decision. The Division gives the example that the circle of interested parties in an enforcement decision does not always coincide with that in a decision to grant a permit.
Judge ultimately rules on relevance
The Division additionally clarifies who makes the final judgment as to whether someone is an interested party in a decision. For decisions about activities in environmental law, it is the task of the administrative body to determine the circle of interested parties in the administrative preliminary procedure.
If a subsequent (higher) appeal is filed, it is (ultimately) up to the administrative judge to definitively rule on the question of who are interested parties in a decision. A litigant does not have to prove that he is an interested party. Only if the question arises as to whether 'consequences of any significance' are missing and thus the question whether there is reason not to assume an interested party as yet, can and may be asked of the party seeking justice to explain what actual consequences he is experiencing or fears to experience as a result of the activity.
Concrete application: interested party unless no impact of any significance
Regarding the applicants in these proceedings, the Division ruled that both the college and the court had erred in not considering local residents who lived more than 250 meters from the manure lagoon as interested parties. In fact, all of the applicants could experience odor nuisance. Thus, they experienced actual environmental consequences of the manure lagoon. That makes them interested parties unless "impacts of some significance" to them are absent.
The Division notes that the odor nuisance occurs particularly when the manure basin has just been filled and the wind is in the direction of the homes in question, that the odor nuisance is not continuous but regular, and that the smell of manure is generally perceived as penetrating. Under these circumstances, the effects are of "some significance" and the local residents are affected.
