Date: July 14, 2020
Modified November 14, 2023
Reading time: +/- 2 minutes
Nature is a great good. In view of this, people can still sometimes argue in legal proceedings that, for example, a decision allowing housing development cannot be upheld because protected natural values will deteriorate. But not everyone can simply invoke the protection of natural values. Case law of the Administrative Jurisdiction Division of the Council of State ("the Division") shows that the relativity requirement prevents this. For example, someone who lives at a distance of 500 meters from a Natura 2000 area can invoke the protection of the Nature Protection Act. And someone who lives at a distance of 620 meters cannot. What exactly is the situation? Where at first there was ambiguity about the assessment framework, the Division has now adopted a consistent line. This is evidenced by, among other things, the Division's ruling of June 24, 2020.
To begin with, the relativity requirement is laid down in Article 8:69a of the General Administrative Law Act ("Awb"). In brief, this relativity requirement means that an appellant can only rely on a standard intended to protect his or her interests before the administrative court. If a standard is manifestly not intended to protect his or her interests, the administrative court will have to refrain from setting aside a decision, even though a decision may be contrary to it.
Divisional case law shows that it must be assessed on a case-by-case basis whether the individual interests of an appellant, who lives in or in the immediate vicinity of a Natura 2000 site, are sufficiently intertwined with the public interest that the Nature Protection Act seeks to protect. In particular, the distance criterion seemed decisive for that interdependence. However, this distance criterion always turns out differently. The following examples from case law demonstrate this.
Examples from case law of distances where there is no clear intertwining between individual appellants' interests and the public interest that the Nature Conservancy Act seeks to protect:
Examples from case law of distances where there does exist a clear interrelation between individual interests of appellants and the public interest that the Nature Protection Act seeks to protect:
The Division clarified its review framework in the June 24, 2020 ruling. In this case, the appellant lives 350 meters away from a Natura 2000 area. Between the residence and the Natura 2000 area in question are several plots of land containing buildings, a meadow and a water mill with a catering establishment. In assessing whether the Natura 2000 area in question is part of the appellant's immediate residential area, the Division provided the following framework for review:
"In answering the question of whether such an interrelatedness can be assumed, account must be taken, inter alia, of the location of the dwelling of the person concerned, whether or not among other buildings, of the distance between the dwelling of the person concerned and the nature reserve, of what is present in the area between the dwelling and the Natura 2000 area, and of the existence or non-existence, in whole or in part, of a direct view from the dwelling of the area. If the Natura 2000 area is part of the direct residential area of the person concerned, there is in principle interrelatedness as referred to above."
The circumstances that between the appellant's home and the Natura 2000 area were plots of land with a building, a meadow and a watermill with a catering establishment were, according to the Division, of decisive significance for assuming that there was no sufficient intertwining of the appellant's interests and the general interest that the Nature Conservancy Act was intended to protect. The relativity requirement from Section 8:69a of the Awb thus puts a stop to this.
Where previously there was ambiguity about the specific assessment framework, through its June 24, 2020 ruling, the Division used a general assessment framework when answering the question of whether or not someone has an interest in protecting a Natura 2000 site under the Nature Protection Act. This assessment framework was also used by the Division in the rulings of April 22, 2020 and May 6, 2020. With this it can be said that the Division has now adopted a consistent line. This consistent line can provide a foothold for practice in which each time all concrete circumstances of the case will be relevant. For example, it appears that at a distance of 500 meters between a home and a Natura 2000 area, where there is a direct and unobstructed view of the Natura 2000 area, a person has next interest to invoke the public interest that the Nature Protection Act aims to protect. But it is clear from the June 24, 2020 Division ruling that a distance of 350 meters with intervening buildings and other obstacles is not sufficient to successfully invoke the public interest of the Nature Protection Act. It can be concluded that the absolute distance will always have a relative meaning in this assessment.
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