The horse behind the wagon(?)

Significance and testing against the 'effects of some significance' criterion

Introduction

To be able to challenge decisions as an interested party, impacts of some significance must be capable of being experienced at the residence of the person concerned. This case law (ECLI:NL:RVS:2016:737) was further refined with the ruling of August 23, 2017 (ECLI:NL:RVS:2017:2271). The basic principle is that whoever is directly affected by actual consequences of an activity that is permitted is, in principle, an interested party. The criterion 'consequences of some significance' serves as a correction to this premise. If the consequences of some significance can be determined, but are so minor that there is no personal interest in the decision, then there are no consequences of some significance. To determine those impacts, the factors considered include distance, visibility, planning impact and environmental impact.

Today's ruling (ECLI:NL:RVS:2017:3247) by the Council of State provides a good example of how this review is done.

The case study

An environmental permit has been granted at a site in Venray to build a manure separation plant, in deviation from the zoning plan. A number of local residents, among others, are contesting this. They believe that the environmental consequences are serious for the welfare and health of the surrounding area and that there is also a risk of contamination of products. It is also argued that the manure separation plant will lead to image damage, but the Division sees nothing in that argument.

Local residents and a company that makes medical products are more than 400 meters away. They all have no view of the construction site. And then the Council of State takes the next step: what are the actual consequences that may be experienced and must be brought into focus? Because no relevant documents have been submitted on contamination with diseases or health aspects, the Council of State limits itself to the known aspects on which research has been done and which are related to well-being: air quality and odor. Then, based on those studies - commissioned by the manure processing company - to draw the conclusion that no consequences of any significance on the aspects of air quality and odor arise for a number of interested parties.[1] The Council of State does not say this in so many words, by the way. This is because the limit values and standards that apply to assessing the acceptability of a spatial development are not decisive in determining whether there are consequences of any significance. Those standards only come into play when a substantive assessment is arrived at. What the "of some significance" standard is, (generally or in this case) for odor and air quality, remains unclear.

The fact that the studies in question are refuted does not lead to the studies not being used to determine standing. Makes sense in this case, since no complete counter study was submitted.

The consequence is that it is ruled that some local residents and the company were rightly declared inadmissible, on the basis of insufficiently contested studies that make it clear that they will not be affected by the manure separation plant in any significant way. The line of case law set out by the Council of State thus leads in practice to the fact that even when assessing whether there is an interest, the case must be dealt with in a very substantive way, including the answer to the question of whether studies that must show whether there are consequences of any significance have been conducted correctly and are substantively sound. And finally, it is clear that (unlike the assessment of spatial acceptability) there are no clear standards for assuming or not assuming "impacts of some significance.

Putting the cart before the horse?

We see this again in this ruling, where those same studies are further assessed as to their contents on the basis of the appeals that are admissible. With exactly the same arguments it is ruled that the studies could be used as a basis for the decision-making, to which it is only added that the Foundation for Administrative Law Advisers also saw no reason to doubt the studies. So soon we will need the Stichting Advisering Bestuursrechtspraak to determine whether or not someone is an interested party. That sounds a bit like putting the cart before the horse. Because originally the intention was to make a separation between interested and non-interested parties so that we would no longer have to assess all those objections from non-interested parties. Instead, we must engage in a search for the boundary values that define the boundary between "impacts of some significance" and "impacts without significance.

[1] The concentration of NO2 will go from 20.1 ug/m3 to 20.4 ug/m3, a marginal increase. The odor load will be 0.04 ouE/m3 98P (meaning 0.04 odour units according to the European standard per cubic meter of air calculated 98% of the time). This is little compared to a widely used standard of 0.5 ouE/m3 98P.

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