15 February 2023
What is careful preparation?
Article 3:2 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb) requires an administrative body to gather the necessary knowledge about the relevant facts and interests to be weighed when preparing a decision. Only then can the municipality reach a careful decision. The municipality is required to consider not only its own interests or those of the property developer, but also those of other parties concerned, such as local residents. That this requirement is not to be taken lightly was demonstrated by a very recent ruling by the Administrative Law Division of the Council of State. Is there any recourse for the municipality and property developer in the case of a flawed decision? In this blog, we will discuss everything about salvaging a carelessly prepared environmental permit.
On 21 April 2021, the Division ruled[1] in a case brought by a person concerned opposing the adoption of the zoning plan ‘redevelopment HBG site’ by the municipality of Rijswijk (ZH). Among other things, the plan allows for the construction of 550 housing units, divided into five residential towers, plus a few town houses. The person concerned lives on a parcel adjacent to the plan area. He disagrees with the plan because of the impact it will have on his residential and living environment.
The person concerned had pulled out all the stops in the hope that the decision to adopt the plan would be overturned. He raised as many as 11 different grounds against the decision: His parcel was wrongly not included in the plan; it was wrongly ruled that an environmental impact report did not have to be drawn up; there was a violation of the South Holland Environment Ordinance; his privacy and views had not been taken into account; the adoption of the plan was contrary to a letter previously sent by the Municipal Executive; the loss of green space was unacceptable; protected birds lived in the plan area; traffic nuisance could be anticipated; there was also insufficient parking space; there was an anticipated increase in noise nuisance due to increased traffic movements; and air pollution would increase.
The Division concluded after ample consideration that the arguments presented by this person concerned failed on almost all grounds. However, on the last two grounds, the Division agreed with the person concerned in accordance with Article 3:2 of the General Administrative Law Act. Indeed, the documents showed that the municipality had not taken into account noise levels at the home of the person concerned when adopting the zoning plan. While there was a noise report, this report was dated after the date of adoption of the decision. Furthermore, there was no evidence that the municipality had sufficiently taken into account the impact on air quality at the home of the person concerned when adopting this decision. While there was an air quality report, it was flawed because it incorrectly deducted 920 car movements for an office building that had been vacant for some time.
Article 8:72(1) of the General Administrative Law Act provides that a decision must be set aside, in whole or in part, if it is determined that it was reached without sufficiently careful preparation. The Division did just that; it annulled the decision to adopt the zoning plan. It goes without saying that this, in principle, has far-reaching implications for both the municipality and the project developer concerned.
However, in this particular case, in terms of noise levels, the — albeit late — noise assessment showed that at the site of the home of the person concerned, the impact of the plan on noise levels was negligible. On the issue of air quality, the municipality had commissioned a remedial report pending the proceedings. It followed that even taking into account the 920 traffic movements previously wrongly deducted, it could not be concluded that air quality would be compromised by the plan. For these reasons, the Division determined that the legal effects of the decision adopted would remain in place. The Division was entitled to do so under Article 8:72(3a) of the General Administrative Law Act. As a result, the plans of the municipality and the project developer were salvaged after all.
The development of habitats has many facets, and all these facets must be thoroughly addressed in the preparation. Given the above ruling, the municipality cannot, in principle, afford to make a mistake in this regard. This is in the interest of the municipality which is keen to make progress in developing habitats. However, it is also in the interest of the project developer who wanted to realise its plans. If an omission in the decision-making process does occur, it is important to act appropriately. One must also ensure that the legal consequences of the decision are upheld.
Do you have any questions about salvaging a carelessly prepared permit? If you would like advice or have another legal question, please do not hesitate to contact me.
[1] ECLI:NL:RVS:2021:855
