Not everything has to be destroyed: resistance as a remedy

In administrative law, a judge can dispose of a case in a simplified manner (i.e., without a hearing), for example, when the outcome of a case is so clear that the judge deems a hearing unnecessary. If a party subsequently disagrees with the opposition ruling, it can appeal. In the objection procedure, the judge assesses whether the simplified procedure was rightly applied, or whether a hearing might have been necessary after all. Because even the Division still goes too short in simplified proceedings, as illustrated by a decision of the Council of State on October 30, 2019.

What was going on?

The (council of the) municipality of Enschede had adopted two new zoning plans for the former Twente Air Base. A 'Midden' plan, a normal zoning plan containing zoning for the plan area, and a 'Zones' plan, which included two noise zones, namely for the 'Midden' plan area and for the plan area of a previously adopted 'Noord' zoning plan.

The Midden plan was based in part on the appropriate assessment under the PAS (Program Approach to Nitrogen). Because the Division drew a line through that, zoning plans could no longer use the PAS and the underlying appropriate assessment to substantiate that no significant effects on Natura 2000 areas were to be expected. In the appeal proceedings on the two zoning plans, the appellants naturally raised this argument. Partly because of this ground for appeal, they requested the Division to annul the 'Midden' plan and the 'Zones' plan, insofar as it concerned the 'Midden' planning area. After all, these plans were now unlawful.

When the case reaches the Division, the outcome seems clear. The "Midden" and "Zones" plans follow the fate of many other zoning plans based on the PAS. The appeal process was handled in a simplified manner and in a July 17, 2019 ruling, the appeals were upheld and both plans annulled. In that ruling, the Division thus annuls both the entire "Midden" plan and the "Zones" plan, the latter "because of its coherence" with the "Midden" plan. However, the Division thereby destroys more than was requested on appeal, and the Municipality of Enschede obviously does not agree.

Do not sit on the blisters

If a party disagrees with the simplified handling of a case, it can file an objection. The municipality of Enschede appealed; it did not agree that the North part of the 'Zones' plan had also been annulled. This is because the noise zones for 'North' and 'Middle' are acoustically and physically distinct from each other and have no overlap. Moreover, appellants had explicitly stated that the appeal is directed at the 'Zones' plan only insofar as it relates to the lands covered by the 'Central' plan (and therefore not 'North').

The Division reaches the same conclusion in the opposition ruling of Oct. 30, 2019: in the July 17, 2019 ruling, the Division overturned. This is corrected in the opposition ruling. Although both plans are still destroyed, that destruction is only partial with respect to the 'Zones' plan, namely only insofar as the plan relates to the planning area of 'Middle'. The 'Zones' plan is thus upheld insofar as it relates to the 'North' planning area. The judgment of July 17, 2019 is set aside.

Thus, the simplified treatment may have been too simple. Although this can happen, this opposition ruling illustrates that it can pay to be vigilant about this. Not every illegality - not even with respect to nitrogen - has to lead to the proverbial trash can for the entire plan. Certainly not if there are no grounds for appeal against that part of the plan. If the part of the plan that is lawful can survive on its own, the court has the task of annulling only part of it. The same, of course, can apply to environmental permits and other decisions.

Conclusion

On paper, the opposition procedure deals with the legality of the simplified treatment, but it also allows parties to question (parts of) the ruling. If well-founded doubt is established, a new outcome may follow in the opposition judgment. Although this proved unnecessary in this case, this well-founded doubt can also lead to a hearing being held after all.

In this case, part of a zoning plan was found to have been unjustly destroyed; so this new ruling saves the municipality of Enschede a lot of work for a new plan and provides legal certainty for those affected by the northern part of the Zones plan.

An opposition procedure certainly does not provide a solution in all cases, but it is good to consider this possibility in simplified proceedings. Even a judge sometimes overlooks something, and opposition in cases of simplified proceedings offers the opportunity to raise this relatively quickly and easily. Thus, perhaps all is not lost with that first court ruling after all.

Written i.c.w. Emerence Walraven

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