Pretty tricky this division of powers in the Private Law Obstacles Act.

It will happen to you: as a landowner, you are required by the Minister of Infrastructure and Water Management to allow work to be carried...

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It will happen to you: as a landowner, you are required by the Minister of Infrastructure and Water Management to allow work to be carried out on your land for the construction of, say, a high-voltage connection or an electricity network. Or worse, you are forced to allow a wind turbine, a high-voltage pylon or a transformer station to be erected on your land. This happens regularly: the minister has then imposed what is known as the tolerance obligation on you as a right holder.

Can that just be done? Well not just like that. But it can be done, namely under the Private Law Barriers Act (BP). And what can you do about that? That is exactly what the Administrative Law Division of the Council of State clearly explained in three of its rulings last Wednesday (28 June) (ECLI:NL:RVS:2023:2380, ECLI:NL:RVS:2023:2378, ECLI:NL:RVS:2023:2379). There are then two routes you can take to have such a decision reviewed by the court:

Route 1:

Within a month after the minister’s decision to impose the duty to tolerate has been made available for inspection, a lawyer for a right holder can apply to the competent Court of Appeal to quash the decision because:

  1. the minister failed to recognise that your interests actually require expropriation, for example because the land will become unusable to you as a result of the works and/or works to be tolerated, or;
  2. the minister failed to recognise that in the use of your land, more impediment will be put in place than is reasonably necessary.

Route 2:

A right holder can (without a lawyer) apply to the administrative court within the appeal period for the remaining objections against the decision to impose the tolerance obligation. While the BP does not say this in so many words, the forbearance obligation is a decision under the General Administrative Law Act; the domain of the administrative courts. The proceedings before the administrative court obviously cannot (re)raise what has to be raised before the Court of Appeal.

At first glance, this seems like a fairly straightforward roadmap, which assumes a division of jurisdiction based on private law questions on the one hand and administrative law questions on the other. Yet, with the transition from route 1 to route 2, we enter a dark grey area, where it is not always easy to determine whether you are in route 1 or route 2. Consider, for example, the mandatory ‘amicable consultation’ prior to the imposition of a tolerance obligation. So is that part of the question of whether ‘reasonably should have been expropriated’ (route 1a) or are we then in the careful preparation of a decision (route 2)?

But also a frequently heard objection: what about the alternative routes/tracks of, say, a gas pipeline or a high-voltage line across a plot? So are we at route 1b or route 2? For example, an alternative routing of a gas pipeline may perhaps cause less of an obstruction to a right holder than is reasonably necessary. Then, you would say, you end up with route 1b. At the same time, Article 3:4 of the Awb requires the minister to satisfy himself that the interests involved have been sufficiently identified and weighed against each other. And one of the interests that the minister must consider in his decision-making – besides, of course, the interest of the right holder and the public interest in the construction of the work and/or works – is the ‘good spatial planning’ referred to in Section 3.1 of the Spatial Planning Act. Routing a route is also a piece of ‘good spatial planning’. And that brings you back to route 2 for the alternative routing of a route.

A comment is in order here with regard to route 2: the importance of ‘good spatial planning’ is usually already safeguarded and mapped out in the spatial decision-making process (national land-use plan, zoning or environmental permits, etc.). And those spatial decisions have often been adopted before or at the same time as the imposition of the tolerance decision. In proceedings on the tolerance decision before the administrative court, the interest of ‘good spatial planning’ will no longer be able to be raised in detail in those cases.

In short, in practice it still often proves difficult to determine which judge you can turn to now. The Division also recognised in one of its June 28 judgments that it had erroneously stepped into the legal territory of the Court of Appeal in earlier decisions. In the 2015 and 2017 rulings cited by the Division in ECLI:NL:RVS:2023:2378, it expressly tests whether expropriation should reasonably have been carried out. But it will be clear by now: that is precisely what belongs to route 1, or the legal domain of the Court of Appeal. So the Division was not allowed to give an opinion on that at all.

What is special about the June 28 rulings is that the Division recognises that it misled rights holders and administrative bodies with its previous 2015 and 2017 rulings regarding the division of jurisdiction between the administrative judge and the Court of Appeal. Reason why, in particular, in the ruling ECLI:NL:RVS:2023:2378, it creates a kind of temporary transitional arrangement for the situations where, as a result of these rulings by the Division, administrative bodies have been led astray in terms of the wording of the remedy clause in their decision. And for entitled persons who, as a result of such an erroneous remedy clause, have skipped the proceedings at the Court of Appeal. In those cases, the Division also rules (temporarily) on questions belonging to the field of the Court of Appeal.

It could be said that in doing so, the Department is overstepping its bounds. But if you ask me, this is a great example where the Department thinks along with the practice and provides a solution. A temporary solution admittedly, as the BP will expire with the entry into force of the Environment Act. Indeed, under the Environment Act, the administrative courts will have exclusive jurisdiction to review tolerance decisions. Perhaps that is also what makes the Division dare this extra-legal division of powers.