The Council of State has abolished the so-called ‘opinion trap’ in environmental law .
This is due to a ruling by the Court of Justice of the EU. The Court of Justice ruled in the Varkens in Nood ruling, discussed earlier in this blog, on the possibilities of appealing to the courts. That ruling concerned the application of the Aarhus Convention. That treaty covers, among other things, the possibility for individuals and organizations to invoke protection in court against decisions that may have environmental consequences.
In the Netherlands, decisions that may have significant spatial impact or environmental consequences are prepared using the uniform public preparation procedure. The ECJ interprets that preparation procedure as “public participation. The General Administrative Law Act (Article 6:13) states that those who do not participate in that preparation procedure cannot appeal to the courts. Pursuant to this article, the Council of State assumed that it was also not possible to challenge in court on appeal parts of a decision that had not yet been raised in the view. This arrangement is also known as the “views trap,” “persons trap,” or “parts trap.
The ECJ ruling points out that interested parties in cases falling within the scope of the Aarhus Convention are entitled to wide access to justice. Such access should therefore not be made conditional on participation in a prior “public participation procedure. According to the Court of Justice, the regulation in Article 6:13 of the Awb is therefore contrary to the Aarhus Convention.
In practice, it is not so easy to determine which procedures on, for example, environmental permits are or are not covered by the Aarhus Convention. In the interests of legal certainty, the Council of State has opted for a clear line: in all cases involving environmental law, the Council of State will no longer apply the views trap. This also applies to matters of environmental law that, strictly speaking, are not or not entirely covered by the Aarhus Convention. The Council of State notes that the legislature must do something about this if it considers this new situation undesirable.
What does this mean for stakeholders in spatial developments:
- For local residents and interest groups, it has become easier to still go to court if you accidentally forgot to submit a viewpoint. Moreover, it is now possible to challenge in court parts of the decision that were not yet addressed in the view.
- For municipalities and developers, it means that they can no longer simply assume that they will not be “bothered” by parties who have not participated in the preparation procedure. They may suddenly turn up in court anyway. And parts of the decision that had not previously been named in an opinion may still be subject to judicial review. So the importance of good legal preparation and contact with the environment becomes even more important. As such, this new development in case law does fit well with the upcoming Environment Act, which emphasizes the importance of good participation beforehand.
This contribution was written by mr. Rudolf van Binsbergen, affiliated with the Real Estate Practice Group.
