In five rulings (including ECLI:NL:RVS:2017:2331) on August 30, 2017, the Administrative Law Division of the Council of State (further: the Division) ruled that the Executive Council of North Holland was justified in refusing to grant permits to the Port Authority of Amsterdam and the NDSM cooperative for the placement of 23 new wind turbines in the Amsterdam harbor area.
Interest
The refusal of the permits was challenged not only by the applicants but also by the City of Amsterdam and the Municipal Executive.
The ruling is interesting in the first place because it first confronts the Division with the question of whether the Municipality of Amsterdam and the College count as interested parties in these refusal decisions. The Provincial Executive believes not.
However, the Department explains that and why that is the case here.
With respect to a legal person under public law, such as a municipality, the Division states that it is an interested party if property interests of this legal person are involved in the decision. The Division notes that the Municipality of Amsterdam is the owner of the plots of land on which the wind turbines are planned. As a result of the decision to refuse, no wind turbines can be built on these plots of land, thus affecting the property interests of the municipality. In view of this, the municipality has an interest in the decisions.
With respect to administrative bodies, such as the College, interests entrusted to them are considered their interests. An interest is entrusted to an administrative body if a statutory provision grants this administrative body a power to represent this interest. The spatial planning of the territory of a municipality is an interest partly entrusted to the Municipal Executive. The Division considers that it cannot be excluded that the decision to refuse the placement of wind turbines on the plots may have consequences for the spatial planning, which may include the transition to sustainable energy by means of wind turbines, of the territory of the municipality. Thus, the college is also an interested party in the decisions.
Exceptive review
The substantive issue in these proceedings is whether the provincial regulation under which the permits were refused is binding. It is argued that the provincial regulation violates, among other things, the European Charter, the Services Directive, the Expropriation Act, the Spatial Planning Act and the Constitution.
The Division explains that the question of the binding nature of the provincial regulation is tested by the court exceptively. This test means that the court must disapply a regulation if this regulation is in conflict with a higher regulation. Furthermore, such a regulation may be disapplied due to conflict with a general principle of law, if the government body in question, taking into account the factual circumstances and the interests that were known to this body at the time the regulation was drafted or which should have been known to it on the basis of proper investigation, could not reasonably have come to the adoption of that regulation.
The Department devotes several interesting considerations to the various "higher regulations. One of these I pick out.
Municipal autonomy at stake: as long as a 'provincial interest' is involved
The Port Authority, Cooperative NDSM, the municipality and the College argue that no provincial interest is at issue. Such an interest is required to be able to set provincial rules. With a view to good spatial planning there is no (provincial) need to restrict the erection of wind turbines in the port and industrial area of Amsterdam.
The Division indicates on this argument that what matters (only) is whether the regulation serves a provincial interest. What matters then is that provincial states could "reasonably" have been concerned with a particular interest. The Division's established case law shows that this is quickly assumed.
The Division also comes to that conclusion in this ruling. The Division finds that provincial states have assigned importance to preserving the openness of the landscape in North Holland and improving the spatial quality of the landscape and have therefore included a regulation on the placement of wind turbines. The Division finds that provincial states were justified in attracting these interests as "provincial interests. The Division notes that in doing so, provincial states could reasonably have taken into account that wind turbines have an impact on the space in the rural area due to their size and visibility over a long distance. Provincial states were also able to reasonably take into account that the construction of wind turbines within existing built-up areas can have an impact on the perception of the openness of the landscape outside the city.
This means that in this case there is a power to curtail municipal autonomy and establish a provincial regulation, with associated restrictions.
Conclusion: provincial scheme is binding
In this ruling, the Division also runs through the other "higher regulations," but concludes that there is no basis for the opinion that the disputed provincial regulation must be disapplied because it conflicts with a higher regulation or a general principle of law. The Provincial Executive was therefore right to refuse the requested permits.
