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  • Public law
  • 28-07-2021

In its judgment of 14 July 2021, the Administrative Jurisdiction Division of the Council of State ("Division") decided that, from now on, public authorities must provide for public participation before deciding on an application for a nature permit (1). This obligation follows from the European Habitat Directive (2) and the Aarhus Convention (3). The Division concludes that the obligation to participate has not been properly implemented in the Nature Conservation Act ("Wnb") and its predecessor, the Nature Protection Act 1998 ("Nbw 1998"). The Wnb, and also its predecessor the Nbw 1998, do not provide (and did not provide) for a compulsory public participation procedure when granting permits, but are based on the regular procedure (without public participation). 

The Minister of LNV and the provincial governments are responsible for granting nature permits in the Netherlands. The public participation obligation is met by applying the uniform public preparatory procedure of Division 3.4 of the General Administrative Law Act ("Awb") (also called the "extensive" procedure). However, the extensive procedure does not always apply to decisions on nature permits. From now on, draft decisions for nature permits must be made available for public inspection, after which interested parties can express their views on the intended decision. Currently, several authorities already offer opportunities for public participation. The Division's ruling makes this mandatory rather than optional.

Case study

On 22 December 2015, the Board of the Provincial Executive of Overijssel (the "Board") had granted a nature permit - at the time pursuant to Section 19d of the Nature Conservation Act 1998 - for the operation of a sow farm instead of a meat pig farm (previously permitted). The permit could be granted because the deposition in the requested situation did not increase compared to the deposition in the reference situation. On appeal to the District Court, Stichting Leefbaar Buitengebied ("SLB") argued, among other things, that there were flaws in the way the permit had been established procedurally. The District Court dismissed the appeal as unfounded. On appeal, SLB argues that the District Court erred in ruling that the permit did not contravene Article 6 of the Aarhus Convention. According to SLB, the permit procedure followed is contrary to the Aarhus Convention, among other things because no opportunity for public participation was given prior to the primary decision. The Municipal Executive takes the position that there is no conflict with the Aarhus Convention, because the procedural regulation in the Nbw 1998 was complied with and the nature permit was granted on the basis of a so-called preliminary assessment, which does not fall under the scope of the Convention. 

Legal framework

The Aarhus Convention concerns access to information, public participation in decision-making and access to justice in environmental matters. Article 6 of the Aarhus Convention is central to the Division's decision. That article stipulates that, during the preparation of decisions on whether or not to permit certain environmentally harmful activities, public participation must be offered. 

It further follows from Article 6(3) of the Habitats Directive that authorities have to authorise projects or plans that may have a significant effect on Natura 2000 sites. This provision must be read in conjunction with Article 6(1) of the Aarhus Convention, which means that the competent national authorities must provide for public participation before authorising a project or plan as referred to in Article 6 of the Habitats Directive (4). This public participation applies to activities that may have a significant effect on the environment:

In particular, the public shall be entitled to participate effectively during the environmental decision-making process by submitting, in writing or, as appropriate, at a hearing or enquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity. Such public participation should begin early, that is, when all options are open and effective public participation can take place. (5)

Application in this case

The Division agrees with SLB's argument. The Division considers that permits granted under article 6, paragraph 3, of the Habitat Directive fall under the scope of article 6 of the Aarhus Convention. In view of this, the regulation in the Nbw 1998 and the subsequent Wnb - which implements article 6, third paragraph, of the Habitat Directive - should have included a possibility for public participation. The Division considers that:

As section 3.4 of the Awb has not been declared applicable to the preparation of the permit, nor does the Nbw 1998 prescribe in any other way that public participation should be offered during the preparation of the permit, the Habitat Directive has been incorrectly implemented (6) 

As the Municipal Executive did not apply section 3.4 of the General Administrative Law Act, it wrongly failed to provide for public participation in the formation of the decision.

Consequences
As a result of the incorrect implementation in the Nbw 1998 and the current Wnb, authorities are now obliged to offer opportunities for public participation before they decide on an application for a nature permit. It is still unclear to us how this obligation relates to and will be applied in situations where no nature permit (or no longer) needs to be granted. As a result of the ruling of the Division of 20 January 2021 (7), there is no longer a permit requirement for situations in which it can be demonstrated in advance, through internal balancing, that there are no significant effects on nature areas. Based on this ruling, however, it seems that a consultation opportunity must be created. We are curious as to how this will be implemented in practice.

This blog was created with the help of our work student Selin Gönül and student intern Zeinab Bazzi.

  1. ABRvS 14 July 2021, ECLI:NL:RVS:2021:1507.
  2. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora
  3. https://eur-lex.europa.eu/legal-content/NL/TXT/?uri=LEGISSUM:l28056 
  4. Court of Justice 8 December 2016, C-243/15, ECLI:EU:C:2016:838 (Lesoochranárske zoskupenie VLK) and Court of Justice 20 December 2017, C-664/15, ECLI:EU:C:2017:987 (Protect), paragraph 38.
  5. ABRvS 14 July 2021, ECLI:NL:RVS:2021:1507, section 5.4, article 6 paragraphs 3,4 and 7 Aarhus Convention.
  6. ABRvS 14 July 2021, ECLI:NL:RVS:2021:1507, section 5.7.
  7. ABRvS 20 January 2021, ECLI:NL:RVS:2021:71
     

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