Wider access to administrative courts for environmental law decisions

In a ruling of April 14, 2021 (ECLI:NL:RVS:2021:768), the Council of State ruled that pending a solution by the legislature, in all cases in which the extensive public preparation procedure was applied in environmental law cases, Article 6:13 of the Awb will not be invoked against interested parties. Article 6:13 Awb refers to the requirement, that only an interested party who has submitted an opinion in the preliminary phase is entitled to a right of appeal. This requirement therefore no longer applies.

In a May 4, 2021, ruling (ECLI:NL:RVS:2021:953), the Council of State also held that a non-interested party, who did submit a view previously (because the procedure, like a zoning plan, gives the opportunity to submit a view to anyone), is also received on appeal.

Particularly in zoning plan procedures and environmental permit procedures in which the comprehensive procedure is used to deviate from the zoning plan, but also in procedures relating to permits under the Environmental Protection Act, the Nature Conservation Act, the Noise Abatement Act, the Water Act and the Soil Protection Act (and some other, less common, permit procedures), there is the risk that it will only become clear who is opposed to the plan and with what arguments in the preliminary phase (draft), not until the appeal is lodged. This can partly be overcome by involving local residents and other stakeholders early in the process (which may also have disadvantages), but parties who exhibit strategic behavior will probably not be reached in this way. 

The confusing situation that seems to have arisen has been clarified by the State Council with a press release and the overview below.

The practical problems that follow are:

• Potentially longer uncertainty about the irrevocability of a project (plan or permit). A limited number of submitters of views or a limited number of arguments against a project in a draft phase do not (any longer) constitute an indicator of the likely outcome or risks of procedures. In fact, in all cases it is necessary to wait until the expiration of the appeal period for appeal to the court or the Council of State and the receipt of the grounds for appeal, for a proper assessment.
• The adjustment or repair of the project (plan or permit) may now have to take place in part at a later stage, namely after the grounds for appeal become known, if no views have been submitted by the relevant party. At the appeal stage, however, the opportunities for plan modification are more limited and the process for reaching a modification decision may also be more difficult. It is advised to pay extra attention during the appeal phase to the possibilities that the court and/or the Council of State have, in the event of a well-founded appeal, to provide the opportunity for a remedial decision or to provide for the case itself by including a proposed solution in the ruling.

At present, the ruling does not affect permits granted through the regular procedure. In the literature it is argued that this will remain the case, because the objection procedure can be classified as "a review procedure before a court of law and/or another independent and impartial body established by law" as the Aarhus Convention prescribes. Incidentally, there may still be doubts about this, and there is a risk that if an objection procedure is not classified as such, it will also apply to regular procedures that it cannot be required that an objection has been made first. This is therefore not yet the case.