Sowing doubt about plan damages pays off

The Division's decision of December 6, 2017 (ECLI:NL:RVS:2017:3346) further clarifies the conditions under which an expert opinion on planning damage can be questioned. If an appellant succeeds in presenting concrete evidence to cast doubt on the correctness or completeness of the advice, this means that the decision to award plan damage by the administrative body is insufficiently substantiated and goes down in this case. This provides opportunities to reduce the amount of plan damage.

Plan damage

In these two cases being heard simultaneously, an environmental permit is granted for the construction of a storage shed and the raising of land on the plot. Two local residents challenged this decision and claimed planning damages, claiming that their plot had decreased in value due to noise, odor nuisance and obstructed views, among other things. The college awards both local residents an amount of approximately €8,500 each. The college bases this on the advice of an expert, which states that the local residents suffer planning disadvantage as a result of the new shed. The amounts from the opinion were adopted one-to-one in the decision. The appellant, who had applied for the permit and was liable for compensation for planning-related damage, successively appealed and appealed against the college's award of planning-related damage. In doing so, he challenges on appeal the opinion of the expert engaged by the college.

Concrete leads for doubt

Challenging an expert opinion is possible in principle, but not without reason. In previous decisions, the Division has already ruled that an administrative body may rely on such advice when making a decision on a request for compensation for planning damage, provided this advice was provided by an independent and impartial expert appointed by the administrative body. Furthermore, an objective account of the investigation carried out must be given and it must clearly state the facts and circumstances on which its conclusions are based. Finally, the conclusions must not be incomprehensible. If the expert opinion satisfies these conditions, then it is up to the appellant to put forward concrete grounds for doubting the correctness or completeness of the opinion.

This is precisely the case here. On appeal, the appellant asked an expert to prepare a second opinion, which criticized the advice the college had relied on on three points. For example, there would be no deterioration of views, nor would there be an increase in traffic intensity and odor and noise pollution. In other words, there is detailed substantiation of where the inaccuracies in the advice were and how the situation should have been. The Division then finds that with this second opinion the appellant had put forward concrete evidence to doubt the correctness or completeness of the advice. The Division therefore saw reason to appoint the Stichting Advisering Bestuursrechtspraak voor Milieu en Ruimtelijke Ordening (StAB for short) as an expert to conduct an investigation.

A third expert

The StAB then arrives at its own opinion. In addition to its own assessment of the situation, the StAB also concludes that the previous opinions of the other two experts are not useful for determining the planning harm suffered. Therefore, it commissions a new valuation to determine the exact damage. The appellant submits views against this, but this time the Division follows the StAB's advice and sets the compensation for the planning damage at €5,600 and €7,200, respectively, significantly lower amounts than determined by the Board.

Conclusion

This case makes it clear that it can be useful to question an expert opinion that underlies a decision to award planning damage. This can be done, for example, by having a second opinion drawn up, in which it is well substantiated where the inaccuracies are in the advice of the expert hired. It must also be substantiated how it should be. If, as a result of this, there are concrete indications of doubt about the correctness or completeness of the advice, this means that the administrative body should not have simply relied on this advice. This can result in the decision to award plan damage also going down.