BwN alternatives should not only be appealing and effective; they also need to fit into the existing legal framework. BwN developers tend to be practical people with an ambiguous attitude towards bureaucracy and regulations. In particular, the Birds and Habitats Directives have created many negative feelings when they were called upon in national courts and a lot of projects were delayed or cancelled. However, ignoring legislation is not helpful. It can lead to a waste of time and money, and to damaged reputations and relations. Just like with the dentist, a rational and preventive approach will pay off.
This section informs on how to scan regulations and respond to emerging regulatory barriers. The guidance is based on the Dutch context, where regulations are generally followed but are often amended with consensus based policy making. In other countries regulations may be more strict and hierarchical; or there may be two different realities: the regulatory reality on paper and the behaviour in practice. In all cases and places it is worthwhile to check the most important legal frameworks; to hire legal expertise in an early stage (and not when a project has run to the ground); and to ask around how legislation is used in practice.
The section offers a general perspective on the structure of regulatory systems and the role of perceptions of regulations in project development processes.
How do regulations influence the BwN process?
In the basis, regulations reflect an effort of people to organise society. Laws are the most formal way available for people to express a common agreement. Laws are often designed to protect something that is valuable: human lives and health, economic assets, the quality of water, soil and landscape, nature and wildlife. For BwN-developers, regulations are a sign that something important is at stake that has to be included in the design.
Present-day regulatory systems are often organised by sector and therefore fragmented. Because of the sectoral organisation of laws, BwN initiatives are confronted with a large number of rules and standards at various levels. The figure below shows an example of a scan which Dutch and European laws and regulations can influence a BwN project. European legislation is generally taken up in the national laws but still the picture is very complex and 'food for experts'.
Three characteristics make scanning this regulatory context a demanding task:
Nature regulations aim at conservation of ecological quality, and unfortunately they hardly ever take a dynamic developmental perspective. This is one of the new insights that have proved to be difficult to incorporate in nature legislation. Within the present legal system, BwN has to argue that it will protect existing values and will add new values. BwN-principles, if effectively advocated, are likely to eventually influence the institutional context in which decision making takes place.
Other well-known bottlenecks with regards to regulatory context are:
These bottlenecks lead to diverging interpretations of legislation. In such cases, lawyers will venture into 'try-out court cases.' By going to court with a vague law, judges are forced to make a decision, and this way precedents are created for future decisions. This is the so-called 'case law'. Case law makes future interpretation of laws more predictable and helps developers to move on. A legal framework does not consist of ‘laws of nature’ but of ‘laws by people’. Although a good deal of thinking has been put into every law, they still can use improvement, and everyone who uses a law can contribute to that process.
It is important for a BwN-developer to realise that regulations, which in the beginning are often viewed as barriers for development, may just as well be opportunities for development. Usually, this is a matter of perception. Different perceptions of regulations lead to different strategies to deal with them:
An example of the EU Birds and Habitats Directives, which form the legal basis for Natura 2000 network of protected areas, illustrates the challenges of regulations as well as possible schemes to handle them. The application of the EU Environmental Directives by governments and project developers has not always been successful. Hence the Birds and Habitats Directives constitute perhaps one of the biggest perceived challenges for BwN in the European Union member states. Yet, there are several reasons to (try and) perceive these Directives as opportunities instead of barriers:
In this section first a quick tour is given of how regulatory systems are structured. Next also provide guidance is given on how to map and monitor the legal aspects of BwN projects. Is is also explained how to handle (perceptions of) regulations strategically in order to seize regulatory opportunities and prevent regulatory barriers. Most of the guidance presented hereafter is based on a study of the EU Birds and Habitats Directives. These nature directives aim at conservation of all species of naturally occurring birds in the wild state and natural habitats of wild flora and fauna in the European territory of the member states.
The section is structured along the following lines:
Structure of regulatory systems: Read more
In this section basic concepts are provided which are at the basis of most legal systems. Together these concepts provide a first rough 'map' of the jungle that legislation sometimes may seem.
Legislation has a multilevel structure connected to different levels of government: International – European – national – provincial/district – local/municipal. International law takes the form of negotiated treaties to which countries can ‘subscribe’; the endorsement by more states strengthens the power of the treaties. Examples are the Universal Declaration of Human Rights, the Law of the Sea, trade laws, and the Kyoto Protocol. The European Union also has set out to create an extensive body of legislation which are binding for Member States. The most relevant level for BwN projects is the national level, because national laws are binding for all the citizens of a state. National laws incorporate the European laws and the international treaties that are endorsed by a country. Lower levels of administration such as provinces and municipalities work within the national framework.
The reason that the national level is dominant from the legislative perspective is the principle of the ‘sovereign state’. A sovereign state has a territory, a population, and one political authority. The political authority has a mandate to govern the people and the land within its territory, without interference of other states. All sovereign states are considered equal in international negotiations. A state needs to be recognised by other sovereign states to participate in international debates. The sovereign state principle was developed in Western Europe in for the ‘Peace of Westphalia’ in 1648 with the aim to end religious wars. In colonial times, the legal principle was imposed on other continents and today, the United Nations list of sovereign states includes 206 nations of which 190 are undisputed.
Every sovereign state has the right to develop its own legal framework, which usually consists of a constitution and a body of sectoral laws (administrative law). A constitution describes the rights of the citizens of a state (freedom of speech, and so on), and the way the political authority is organised (how elections are organised, the relation between higher and lower levels of government).
Most states use a democratic principle known as the ‘Trias politica’. This principle describes the division of power in a state between legislative, executive and juridical powers.
A Trias politica system assumes that each of these three powers is equally important, but each has a separate role. A balance of powers is needed to keep government powers in check and to safeguard a fair and equal treatment of all citizens in a state. The exact configuration varies by country. Legislative and executive powers are present at each government level (national, provincial, and municipal level) while juridical power is usually present at regional and higher levels (in the Netherlands: eleven courts across the country, four courts of appeal, and one supreme court).
The juridical power has the final word on the interpretation of the law, thereby creating the so-called ‘case law’. Judges work within the existing legal system, and if other powers disagree, they will have to pass new laws through parliament first. If laws leave a lot of room for interpretation, court cases are needed to clear it up. Previous judgements will heavily influence new decisions of judges, again, to safeguard the equal treatment of each citizen.
This body of case law is relevant to predict future decisions in a court. BwN-relevant decisions will concern (nature) assessments, approval or rejection of projects and permits that specify conditions of approval.
Preparing and executing BwN projects is normally done by the executive power; i.e. the political leaders and the administration that supports them. However, it is wise to keep an eye on the legislative and juridical powers as well. Legislative powers, such as councils of municipalities and water boards, need to approve the budget of new infrastructure, and a BwN initiative will have a bigger chance of success if council members have been informed about a new approach before the final decision arrives. The legislative power comes into play when parties who oppose BwN alternatives go to court. The best way to deal with this is to try and prevent this kind of conflict.
How to keep regulation up to date? Read more
Creating and updating laws in a democratic society is a labour-intensive process. Innovations in society can be fast and sometimes laws already are outdated before they are approved. One way to deal with the tension between the thoroughness of legal procedures and the agility of society is to create less detailed primary laws: to formulate overall goals instead of detailed measures (‘good water quality’). The details can then be dealt with in annexes to the law which are regularly updated in secondary laws (for example, annexes with red list species).
A second option for keeping legislation up to date is to write framework laws that only describe a procedure towards a decision (like Dutch spatial planning laws). A consequence of procedural formal law (or ‘hard law’) is that it needs to be complemented with informal law (or ‘soft law’ or ‘pseudo regulation’). This soft law can take the form of policy plans, policy documents, covenants and so on. The plans and covenants contain detailed and specific agreements, but can be adapted every few years. In case law the public and accepted plans are often taken into consideration.
A third option for dealing flexibly with legislation is to act more in the ‘spirit’ of the law than according to its literal meaning. Dealing with regulation is navigating between two bad extremes: on one side, ignoring the regulations would result in complete arbitrariness and ‘lawlessness’; on the other side, using regulations as a strict blueprint would freeze a society in one orthodox shape. Every country has its own way of dealing with regulation in terms of strictness and transparency. In the Netherlands, a promise of innovation and economic opportunity can be a reason to circumvent a law; but this would be described explicitly in a covenant-like document. Other countries have varying, culturally defined ways to deal with legislation (for example, strict enforcement, no enforcement, going to court at the slightest incident, avoiding a court case at any cost, and so on) and it is wise to study this attitude towards legislation in practice.
How to deal with regulations in practice? Read more
| A developer should monitor closely whether a BwN design fits into the prevailing legislation and regulations. The check on legislation and regulations includes obligatory approval procedures (permits and licenses), applicable formal and informal regulations, and the planning system. Seen from a project perspective, the regulatory system determines how decisions will be taken, which procedures are in place and which standards will be applied to this case. In most legal systems, applicable standards can be found in primary and secondary laws and informal regulations on issues such as air quality, water and soil quality, the use of construction materials and interference with other economic activities. Especially relevant are the procedures and the required assessments, such as appropriate assessment of nature, multi-criteria analysis on costs and benefits and Environmental Impact Assessments.|
Scans of regulations take time and require some expertise in this field. One might consider outsourcing this task to a capable and trustworthy specialist, or let such a person give a second opinion. Hiring expertise in an early stage can prevent a lot of legal trouble in later stages. In court cases, following the correct procedures is given a high value, and once an important step is omitted, it can be costly and time-consuming to repair it.
Awareness of case law can provide more precise guidance, as it gives insight into the interpretation of legislation in specific situations. In addition, documents such as explanatory memoranda are usually available for every piece of primary and secondary law, explaining intentions and goals. Sometimes additional guidance is issued later on, for instance the guidance document of the European Commission (European Commission, 2011). Such documents clarify how national primary or secondary legislation, for instance on water quality, should be implemented in a specific region. Further guidance may be available in handbooks and manuals.
How and where to find or create ‘space for BwN’ in existing regulations / legislation? Read more
“You have to learn the rules of the game. And then you have to play better than anyone else.” Albert Einstein
The BWN approach to match a BwN design with the Regulatory Context takes 3 steps:
1. Talk with the regulators to identify formal requirements: Read more
2. Talk with the Authorities to identify implementation procedures: Read more
3. Adjust and fit the BwN design to the actual regulatory context: Read more
Do’s and don’ts: Read more
To make a coastal development project successful in an ecologically sensitive area and avoid ending up in court, a BwN manager and/or project administration is advised to:
Assessment of the legal viability of a BwN initiative is a recurring activity, the scope can vary from a first-order reconnaissance up to a very detailed assessment.
Lessons learned with regard to specifically the EU habitats / species regulation and the appropriate assessment procedure:
If Natura 2000 or comparable regulations are applicable, plans or projects should always be based on mutually beneficial strategies according to the ‘working with nature’ concept’ (see Guidance document European Commission, 2011).
A comparison between two very similar projects demonstrates how management of the regulatory system during the initiation an planning phases can be decisive for ‘success or failure’.
The Veluwe Randmeren, i.e. the shallow lakes between the polder Flevoland and the mainland of the province of Gelderland, were designated as a protected area under the Birds and Habitats Directives in 2000 and 2003 (see Figure). Conservation objectives for Veluwe Randmeren were finalised in 2007. Two coastal developments took place in this area. The project in Harderwijk ‘Waterfront Noord’ included the relocation of an old industrial area, improvement of recreation and housing facilities, and strengthening the natural and water functions. The one in Zeewolde – on the other side of the lake – envisaged a park zone, two beaches, an island with recreational facilities connected to the shore by a bridge or a dam, and a row of islands that would create an open lagoon area between the islands and the shore.
Both municipalities argued that a loss of Natura 2000 protected area (8.5 ha in Harderwijk and 10 ha in Zeewolde) had no significant effect on the integrity of the relevant Natura 2000 site. Both authorities took into account the requirements of Habitat assessment, have argued that an appropriate assessment was not necessary and seemed to have integrated nature into their design. However, there was a slight difference on how they have done it, which eventually led the Supreme Dutch Administrative Court to reject the Harderwijk development in 2008 and approve the Zeewolde development in 2009.
The successful design was adjusted to Natura 2000 conservation objectives of the Veluwe Randmeren and contributed to achieving these objectives. The municipality of Zeewolde maintained that a permanent loss of 10 hectares of sanctuary and forage area for birds did not threaten the favourable conservation status, since the coastal lagoon, parts of which have shallow water, will support the recovery or even improve the habitat of the protected species.
The unsuccessful design tried to create new habitat to neutralise the loss of the existing one. The municipality of Harderwijk argued that the loss of 8.5 hectares of habitat and forage areas could be neutralised by the creation of a green zone and nature-friendly areas, which would be suitable as new habitat for birds, fish and mussels, while the transformation of a nearby area of pastureland into marshes would make the area attractive for water- and grassland birds and create a water retention area.
The successful development had a well-organised administration. The municipality of Zeewolde administratively separated coastal development from residential area development and carried out residential development first. This step-by-step approach allowed for the rapid realisation of the coastal zone project. The overall design of the coastal zone plan did not undergo any major changes, and in the short time span of development no significant legislative changes occurred. Early de-coupling of residential interests shifted attention towards the more prominent role of nature in coastal development and a more tailor-made design.
The unsuccessful design failed to provide solid scientific (ecological) argumentation. The new habitat creation proposed by Harderwijk was just a collection of existing nature development initiatives in the area. With no consistent nature development plan in mind, authorities also failed to provide solid scientific argumentation that no adverse effects were to be expected. Instead, they tried to investigate the ecological effects to the depth of the available knowledge.
In the successful project, on the other hand, BwN design indirectly contributed to the actors’ confidence in their own project design and their certainty in the provided scientific underpinning (Zeewolde).
The comparison of these two projects illustrates that the actors’ interpretation of when exactly the required level of certainty is reached is an important factor for implementation success. The interpretation of scientific data can be further strengthened by the following factors: consistent use of terminology (appropriate assessment or not), actors’ prior experience and the exact wording of reports, conclusions and the interpretation thereof by the Court.
In the context of Natura 2000 implementation in the Netherlands, BwN design principles can increase the chances of project approval in case of appeal to the Supreme Administrative Court. BwN-developers should consider the following lessons:
With quite some delay the Harderwijk development ultimately did obtain approval for a new project ‘Waterfront’ (http://www.waterfrontharderwijk.nl/). To compensate for the impact of this housing development the municipality created two new resting zones for birds of about 20 and 50 hectares in 2014. These zones are closed for recreation vessels between September and April. The design and management of the new bird zones is described in a covenant between governments, nature organisations and other stakeholders.
In 1988 the polders of Kruibeke, Bazel and Rupelmonde were designated a special protection area (SPA) under the EU Birds Directive and in 1996 they were designated a special area of conservation (SAC) under the EU Habitats Directive (see Figure). However, the practical implications of these designations only became clear after another project, viz. the construction of a new tidal dock on the left bank of the river Scheldt (the Deurganck Dock) had been implemented.
Although Deurganck Dock received a lot of public and professional attention, the 35-year history of its compensation project – the Kruibeke, Bazel and Rupelmonde flood control area – is more interesting from a BwN-perspective. It illustrates how the actors’ learning strategies gradually broadened the project goals from flood defence to nature, the development of Antwerp harbour, and the goals of local stakeholders. Partly as a result of the involvement of Natura 2000, the project evolved towards a BwN-type design which balanced the conflicting interests of the past.
The Deurganck Dock project, implemented predominantly for economic benefit, was confronted with environmental requirements of Natura 2000. This required some adjustment to the project outline, but approval was relatively quickly obtained.
At the same time the local flood defence project (Kruibeke, Bazel and Rupelmonde flood control area) was accorded with low political priority. At the European level, workable approaches were sought to address the accumulated misunderstanding of the Birds and Habitats Directives by industry and the resulting case law. Placing ecological goals at the start of the planning process, as envisaged in BwN, could balance the previously conflicting interests and result in designs which are acceptable to most stakeholders. The BwN- approach can help the authorities to avoid conflicts of interests and speed up project implementation, provided that it is applied from early on in the planning and decision-making process.
The chronological analysis of Kruibeke, Bazel, Rupelmonde project implementation: 4 stages
The following lessons could be learned learned from the Kruibeke-Bazel-Rupelmonde project
As for the relationship between Natura 2000 and project design, it should be noted that the project design already resembled Building with Nature before the effects of the Bird and Habitat Directives were put into place. Natura 2000 then linked the project of overriding economic interest in Antwerp with a less visible flood security and nature project in Kruibeke, thereby forcing more cooperative interaction among the stakeholders. This cooperative interaction led to creative solutions and new opportunities, such as the combination of nature and agricultural activities in the area. Hence Natura 2000 does, albeit indirectly, encourage more integration of societal and ecological goals on a project level, which could take a form of a Building with Nature project.
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