Have the conservationists Kees and Bianca de Graaf from Weesp abused the law? And how do you actually determine that? The final answer will probably take months to a year – until the appeals court is out. But the fact is that the couple for the summer on court order forced proceedings against a construction project (part of the Weespersluis district) were discontinued. Which it did the same day. Environmental groups have been warned, developers and municipalities have been pleasantly surprised. It suddenly seems possible to cut off interest groups that delay construction projects at an early stage.
For lawyers, the verdict, an injunction by a summary judge, is almost sensational. Free access to justice is sacred in the rule of law, abuse of rights is almost never accepted. Let alone that a civil court forbids a citizen access to the administrative court, as in this case. With the argument that the administrative judge would not be decisive enough in the timely termination of unsuccessful professions. The scientific comments accompanying the verdict therefore speak of shame – this seems to be an interference with the exclusive legal powers of the administrative court. And it is surprising that a judge who usually judges mainly practical and summary, now pushes boundaries.
This judge apparently saw an abuse. That’s not how we treat each other, was the message from Judge Antoon Schotman. Here the so-called ‘civil residual judge’ was in action – the legal broom wagon for proceedings that linger or remain unresolved in other jurisdictions. The ‘North Holland route’ was (provisionally) included in the arsenal of lawyers and lobbyists.
Since then, the 17-page verdict has been eagerly emailed to each other by lawyers. This includes seven new criteria against which future cases of process abuse can be assessed. In short: taking the interests of the other party explicitly into account, being more critical of your own chance of success and considering whether this procedure is the right way to do so. The court has deleted that in the event of abuse of law there must be bad faith, as previously assumed.
How long this verdict will last legally depends on the court. But it has been crystal clear for some time that this is a social problem. Housing shortage and energy transition are driving up the number of administrative law cases in environmental law. Last year, the Council of State counted on 2,200 cases, but received 2,744, a quarter more. At the rate of the first four months of this year (1,018 cases), there will be 3,000, compared to 2,800 this year. The result: delays, stress and rising costs.
‘seated’ residents almost always advocate the interests of nature, views, landscape and (own) quality of life. Governments defend the public interest: new residents must also be able to live. In this case, they asserted themselves for the first time in person. They organized, campaigned, wrote letters, and finally got a lawyer. And they convinced the judge in Haarlem. The judge ruled that by challenging the environmental permit for new homes, Kees and Bianca de Graaf were putting 162 families at such unreasonably serious risks that they should never have submitted their objections. The buyers experienced “unprecedented stress” as their mortgage offers threatened to expire while interest rates rose. They had gone “to the limit” financially – the delay in the administrative court would mean for dozens of families that they would “definitely lose” their chance of buying a home. They calculated the possible damage at 15 million euros.
Nor should they have taken into account the conservationists’ objection. The duo with its foundation did not litigate against previous environmental permits in the same construction project. But this time they did it to get the developer to make haste with “green compensation” elsewhere in the area. The irony was that the buyers agreed with the purpose of the foundation, but not with the means. But all attempts to settle with the duo failed. The foundation, according to the website concerned about the “natterjack toad, snail, buzzard, hawk, long-eared owl, grass snake and ermine” found that buyers chose to risk the delay that would cause their mortgage offers to expire. Even if that would mean loss of the home, no family expansion or in some cases even keeping a family together.
The delay caused by the appeal procedure before the administrative court would cause the buyers a loss of 15 million euros
Of NRC Kees and Bianca did not want to speak, by the way. They filed dozens of objections and appeals against the entire construction project. But this time they were subpoenaed themselves and had to stop their proceedings. The purchase of 162 homes was saved. Administrative lawyer Anne-Marie Klijn represented the buyers, together with civil lawyer Ron Bisschop. Klijn, who usually assists developers, sees how much time the battle for the permits takes. “An initiator of a project can sometimes easily wait two and a half years for the Council of State to rule.” And that while, according to her, the General Administrative Law Act offers the possibility to quickly dismiss objections, as ‘manifestly unfounded’. “But that almost never happens.”
At the highest instance, the Administrative Jurisdiction Division of the Council of State, Klijn, who has 32 years of experience and is also a deputy judge, regularly notices annoyance at the state councils. In that case, when trees are felling permits “by such a friendly foundation”, an objection is made to the zoning plan, for example, or arguments are presented that belong in municipal politics. “It is well-intentioned, but often not the right place. I have once suggested in administrative law that an examining magistrate should explain to people in a ‘front porch’ that their objection makes no sense.” He could then advise to ‘get the most out of it’ in negotiations. The foundation that litigated against the felling permit was also repeatedly asked to talk, but remained inflexible.
Lawyers are now getting a lot of questions about the trial ban. Does it also apply to ‘my project’? Klijn and Bisschop warn that the standard for a prohibition of trial has been formulated very precisely. “It’s not easy to meet it.” At the same time, a taboo has been broken – even the experts who critically assessed the verdict acknowledge that there is a social problem. Litigation as an obstruction, for delay, as an undermining – it exists. Now a line has been drawn.
This column will appear on Saturdays from September.
A version of this article also appeared in the newspaper of August 2, 2022