Participatory arrangements and appeals in court
In many countries stakeholders can oppose permits and decisions at an administrative court; only in a few countries stakeholders can object to formal regulations. Additionally stakeholders are offered the opportunity to enter a participatory process when policies, policy guidelines and plans are prepared. In procedures for preparing policies, policy guidelines and plans a similar possibility is offered to experts.
For example, the meaning of 'Habitat assessment' under art. 6 Habitat Directive for plans and projects is explicitly linked to restrictions in access to the courts and the different ways in which justice is administered within the EU. A comparative law study by Backes et al. (2006) highlighted these differences. In Austria and Germany, there are very few possibilities for public participation and legal protection available to citizens to contest the national legislation putting art. 6 par.3 and 4 Habitat Directive into effect. The highest court considers that legal protection of citizens is not required since European nature conservation directives concern the protection of a general interest as opposed to individual interest. This is not regarded by the European Commission as an infringement of European law, as citizen involvement is not mandatory in art. 6 par. 3 Habitat Directive. Public participation is mandatory if there is also an EIA procedure, but this derives from the EIA directive and not from the Habitat Directive.
In England, it is decided in each specific case whether opportunities for public participation will be offered. Often legal protection is available against sectoral decisions. There is less haste in England to present differences of opinion on the application of legal frameworks to the courts, and solutions are first sought in consultations. In Sweden, the way the general public is consulted depends on the law the decision was taken upon (e.g. physical planning law, etc.) and is usually limited to the ‘affected public’ and environmental NGOs. In Flanders, nature and environment organisations have access to the Belgian Council of State to contest decisions. In the Netherlands, access to an appeal procedure against a permit issued under the Nature Protection Act is open to interested parties and stakeholders including nature and environment organisations. In the Netherlands, unlike in Germany and Austria, there is no relativity review: an interested party can present all arguments against a decision, no matter whether he or she has a specific interest with these arguments. Opportunities for participation in legal actions in the Netherlands are thus much wider compared to the other countries studied.
BwN developers should be aware that negotiating with stakeholders and NGOs in an early stage by no means implies that every individual or company will perceive their interests are served. Including them early will not imply either that they will waive legal appeal opportunities. Always assess the ownership and user rights thoroughly, be aware of vested interests touched upon, and include them into participatory arrangements; however do not be naïve: someone might still appeal to court. In that case, both a well-intended dialogue with stakeholders and correctly followed legal procedures will convince the judges to decide in favor of the BwN developer.