European nature conservation legislation and spatial planning: For better or for worse?

Abstract

The implementation of the Birds and Habitats directives has been problematic in many member states of the EU. In the Netherlands, many decision-making processes have ended in judicial intervention. This paper analyses the problematic implementation of both directives in the Netherlands. It shows that nature conservation legislation has gained importance in decision-making processes, but that this does not automatically mean that nature conservation goals have been achieved. Because of the emphasis that is placed on the procedural aspects of decision making, the costs involved have increased, while the substantial goals of the European Birds and Habitats directives are fading into the background.

Notes

1 LJN: AA9523, Council of State, 200004163/1 & LJN: AA6571, Council of State, 199901039/1 (all Dutch case law is available at the website http://www.rechtspraak.nl).

2 European Court of Justice Case 3/96 (all ECJ case law is available at the ECJ's website http://curia.eu.int).

3 LJN: AF0231, Council of State, 200200050/1.

4 LJN: AS7244, Council of State, 200401256/1.

5 LJN: AT6572, Council of State, 200409107/1 & European Court of Justice C-127/02.

6 LJN: AS3915, Council of State, 200307350/1.

7 An overview of the brochures, flyers and guidelines published by the Ministry of Agriculture, Nature and Food Quality can be found at their website (http://www.minlnv.nl).

8 Consultant companies are aware of this situation and they discuss it among themselves and with the national government. A discussion between two important green consultant companies about whether or not a 5% decline of a population is significant, who should determine this and if this norm can be used in all situations, shows that it is not easy to find simple solutions and that there is some disagreement about these points. See Kistenkas (2005, Table 1) and Woestenburg (2005, Table 1) for an overview of this discussion.

9 In a joint statement, the nature conservation organizations Badger & Trees; Reptiles, Amphibians & Fish Surveys, Netherlands; Dutch Butterfly Conservation; and European Invertebrate Survey, Netherlands, together with project developers, The Association of Dutch Property Developers and the United Construction Sector Companies, show their concern about the conflicts that nature conservation legislation causes. They recognize the protection of species, but they demand that the national government should provide more information and clarity about the rules and about the occurrence of protected species in order to avoid conflict situations. Other examples are found in the reports Broek, J. H. G. & Schippers E. I. (2002) ‘Soorten en Maten. Beleidsadvies VNO-NCW’ and Raad voor Landelijk Gebied (2002) ‘Voorkomen is beter … Advies over soortenbescherming en economische ontwikkeling’, RLG/02/0 (both in Dutch). In the first report, the Confederation of Netherlands Industry and Employers argue that the Birds and Habitats directives cause unnecessary frustrations among planning and project developers and they plead for adaptation of both directives. In an article in a national newspaper the chairman of this organization states that there are ‘only losers’. The study of the Council for the Rural Area shows that economical and other social activities are sometimes unnecessarily frustrated by protected species legislation and that this undermines the credibility of nature conservation and frustrates nature development. In a national newspaper, a local politician and an employee of Birldlife International in the Netherlands show their worries about the problematic implementation of the Birds and Habitats directives (Volkskrant, 10 March 2001, ‘Verlamd door het beest’).