Reason behind the government’s policy of living near high-voltage lines
Although according to former Dutch Minister of Economic Affairs, Mr Kamp, a causal connection has not been scientifically proven to exist between such exposure and health problems, the safety of living near such electricity cables is a topic of discussion. This first became an issue back in 2009 when 9 homeowners in the area where new cables were going to be installed were allowed to move house at the grid manager’s expense. Since then, this issue has been raised more often before the Administrative Jurisdiction Division of the Dutch Council of State (‘Division’) where appellants (just last year in a case), based on their concern for health problems arising from living near high-voltage lines, argued in vain that the situation contravened article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Pursuant to article 8(1) of the ECHR, everyone has the right to respect for his private and family life, his home and his correspondence. Established case law of the European Court of Human Rights (ECtHR) provides that to successfully invoke article 8 of the ECHR, complainants must find themselves in a situation in which their private lives are directly and sufficiently seriously impaired, which in this case concerns their right to inviolability of the home. In that respect, the circumstances of the case are assessed, such as the intensity and the duration of the nuisance, the effects on physical and psychological health and the nature of the area. In all instances, the ECtHR refers to prevailing scientific knowledge. In a judgment of October 2013 this resulted in the Division deeming a new situation to be insufficiently inconvenient and the invocation of article 8 of the ECHR failed. Earlier, in December 2010, the Division had also weighed the interests and ruled that based on the major interests involved in realising the high-voltage interconnections and the anticipated problems that could occur in the event of the discontinuation of the power supply, the realisation had to be regarded as necessary in the interest of protecting the public’s safety and the country’s economic well-being.

Given the potential statistically significant link between the occurrence of health risks (such as leukaemia in children) and the magnetic fields of aerial high-voltage interconnections, residential areas are avoided as much as possible when installing new high-voltage lines. What stood out in a recent judgment of 11 October 2017 was that Tilburg residents had invoked article 8 of the ECHR to argue that that article barred a prohibition to have houses used as principal residences by persons under 15 years of age. In that case, however, the Division considered a restriction of the right to inviolability of the home (insofar as that right were involved) to be justified on account of protecting public health.

According to guidelines of the Dutch National Institute of Public Health and Environmental Protection (RIVM), the distance between homes and high-voltage pylons must at present be at least 80 metres on both sides of the high-voltage cables. As that was not the case prior to 2005, the government wants to make it possible to lay part of the existing high-voltage interconnections underground, in other words 'recable'. Aside from procedural rules, the anticipated general order in council also provides rules for the apportionment of the associated costs among the parties concerned. Below we address the apportionment of costs in more detail.

Envisaged amendment to the Dutch Electricity Act 1998
The draft general order in council stems from the upcoming amendment to the Dutch Electricity Act 1998 (Elektriciteitswet 1998), which involves the addition of a new section 22a to that act. That new section is part of the Legislative Proposal on the Progress of Energy Transition (Wetsvoorstel Voortgang energietransitie, ‘VET’) which seeks to support the transition to 100% sustainable energy. That proposal is currently being debated in the House of Representatives. Among other things, the VET gives municipalities and provinces the authority (based on their spatial layout powers) to impose the obligation on grid managers, as the responsible owners of the high-voltage interconnections, to recable their high-voltage lines of parts thereof. This is optional: local and regional authorities are not obliged to do so; they are at liberty to decide the matter for themselves. Section 22a(7)(a) provides that rules concerning the apportionment of costs between grid operators and local government authorities that wish to have high-voltage lines in population centres laid or relocated underground may be laid down under or pursuant to a general order in council.

Cost apportionment between local/regional authorities and grid managers
The purpose of the general order in council is to give municipalities and/or provinces the power to instruct net managers to relocate or high-voltage lines, or parts thereof, designated by the minister or to have the lines laid underground, without the requesting local or regional authorities bearing all of associated costs. This 'local contribution' and how the process could be given shape was discussed at length with municipalities, provinces and grid managers. At the request of municipalities and/or provinces, grid manager must conduct a feasibility study (proposed section 22a(4) of the Electricity Act). If such a study reveals that recabling is not feasible from a spatial or technical perspective or that it conflicts with the interest of security of supply, pursuant to section 22a(5) of the Electricity Act, grid managers may apply to the minister for a dispensation from recabling or relocating a high-voltage line.

Section 22a(1) states that municipalities and/or provinces must pay 20% (in the case of municipalities with no more than 30,000 residents) to 25% (municipalities with more than 30,000 residents) of the costs of feasibility studies and the actual realisation. In the respect, the number of residents on 1 January of the year in which a request was made to conduct preparatory studies is the determining factor. Section 22a(2) caps the contribution at EUR 975,000 per kilometre (rounded off to one digit after the comma) of new line to be laid. This makes it financially possible for local/regional authorities to recable or relocate pylons even in complex situations that involve higher price tags. Since the requesting party bears a percentage of the costs of feasibility studies as well as the actual relocation or recabling costs, this creates the possibility after the preparatory studies have been conducted to as yet decide not to relocate or replace pylons. Without this decree, grid managers would charge all recabling/relocation costs associated with the high-voltage lines to the requesting party, whereas the requesting party’s costs are now limited to the local contribution.

Consequence: all electricity customers contribute to the relocation of electricity cables
Grid managers bear the remainder of the costs. Except for the costs paid by the requesting party, grid managers can add the costs they incur to the transport costs for electricity. As a consequence, all electricity customers contribute to the costs of carrying out this task. Based on a substantiation provided by TenneT, a transmission system operator, the Dutch Ministry of Economic Affairs has calculated that as a result of this, the electricity rates for consumers could increase by a maximum of €1.30 per year in a period of 15 years, after which they will drop again. According to the same system, electricity bills for mid-sized industrial users could increase to a maximum of €15,000 per year, after which they too will drop again.

The general order in council is open for consultation until 23 November 2017. You have until that date to submit your input. If you need assistance with the consultation process, or a second opinion on a view to be submitted in the consultation process, please contact us.