Interpretation of the criterion "consequences of some importance": who is entitled to challenge environmental decisions?
An environmental law-related administrative decision, such as the adoption of a zoning plan or the granting of a permit, affects nearby residents and others to a greater or lesser extent. The only members of the affected group who are entitled to lodge an objection and subsequently an appeal against the decision are "interested parties", defined in section 1:2 of the General Administrative Law Act as "parties whose interests are directly affected by a decision". Under environmental case law, an interested party is in principle anyone who experiences "real and direct consequences" as a result of an activity allowed under that decision. In a judgment handed down in May 2016, the Administrative Law Division of the Council of State added a requirement that the consequences be "of some importance". Since then, however, the meaning of "consequences of some importance" has been unclear. In a recent judgment dated 23 August 2017– the "Manure Basin judgment" – the Administrative Law Division has now provided much-needed clarification and in so doing seems to have enlarged the circle of "interested parties" to environmental decisions, although this will still have to be confirmed in practice.
Manure Basin judgment: legal principles
In its 23 August 2017 judgment the Administrative Law Division said the following about the criterion "consequences of some importance":
- The criterion is not satisfied if the consequences of the activity for the claimant's home situation, living conditions or business situation, while real, are so small that a "personal interest" in the decision is lacking.
- Factors to be taken into account, if necessary in combination, when applying the criterion are: (i) the claimant's distance from the activity, (ii) whether the activity is visible to the claimant, (iii) the general environmental impact (planologische uitstraling) of the activity (e.g. effect on biodiversity or general living experience) and (iv) the environmental effect of the activity (in terms of e.g. odour, noise, light, tremors, emissions or risk).
- Other possible factors are the nature, intensity and frequency of the consequences.
- If environmental consequences are subject to a regulatory norm i.e. a distance requirement, a contour value or a limit value, compliance or non-compliance with that norm does not determine whether a claimant is an interested party to the decision. If relevant to the decision and grounds for appeal, the question of whether that norm has been complied with will be considered as part of the substantive evaluation of the appeal and therefore not with regard to whether the claimant has standing to lodge the appeal.
- The circle of interested parties can vary depending on the nature of the decision e.g. whether it is an enforcement decision or a decision granting or denying a permit.
Manure Basin judgment: application of principles to facts
Applying the above principles to the facts before it, the Administrative Law Division held that although a manure basin was located at a distance of approximately 300-600 meters from the nearby residents' homes (and was thus in compliance with the regulatory norm of a minimum distance of 250 meters), it had been sufficiently established that the odour experienced by nearby residents was real and could be characterised as an environmental "consequence of some importance". With respect to that characterisation, the Division considered it important (i) that the odour was experienced in particular immediately after the manure basin was filled and if the wind was blowing in the direction of the claimants' homes (the environmental consequence being "odour"), (ii) that the odour was present regularly but not continuously (the frequency of the consequences) and (iii) that the odour of manure is usually experienced as pungent (the nature and intensity of the consequences). According to the Division, under these circumstances the district court should have recognised that the manure basin had "consequences of some importance" for nearby residents, who were therefore "interested parties" and thus had standing to challenge the relevant permit in court.
Impact of Manure Basin judgment
Whereas in its judgment of 16 March 2016 the Administrative Law Division limited the circle of interested parties by introducing the criterion "consequences of some importance", it now seems to have somewhat enlarged that circle by applying the criterion more flexibly. This is in line with other recent cases expanding the concept of interested party, although those cases always turned on the existence of very special circumstances. Well known examples are the "Black Piet" judgment and the Monster Truck judgment. While the appellant in the "Black Piet" case was, strictly speaking, not an interested party in relation to the event permit granted for the 2013 parade celebrating the arrival of "Sinterklaas" in the Netherlands – an annual Dutch tradition which is highly controversial because of Sinterklaas's blacked-up helpers – the public and legal interest in having this case heard on the merits was held to justify a broader interpretation of the interested party concept in this specific case. The Monster Truck case involved an event permit granted for a car and motorcycle show at which an accident involving a monster truck killed several spectators. Although visitors of an event are not usually regarded as interested parties for the purpose of the event permit, the Administrative Law Division made an exception in this case. Relying on its "Black Piet" judgment, the Division held that the case before it also involved a public interest so important that strict application of the interested party concept should not preclude the case from being heard. The Division further held that it was sufficiently plausible that the victims' surviving relatives had been directly and seriously affected by the accident (even if not directly by the decision itself).
Since the introduction of the General Administrative Law Act in 1994 the issue of whether a claimant was an interested party has been a frequent subject of litigation. The resulting case law has not always been uniform: in short, "interested party" is a continuously evolving concept.
