Together with 10 other environmental organisations, Dryade brought a case before the Constitutional Court challenging an amendment to a decree that restricted access to the courts for citizens, environmental groups and neighbourhood committees. In its ruling, the Constitutional Court quashed judgement of 11 april 2023 two conditions that had recently made it difficult to challenge planning permission in court. This means that citizens who stand up for nature and the environment now have a real say once again. A coalition of eleven nature and environmental organisations, backed by 25,000 signatures, demanded that these obstacles be removed because they were effectively silencing nature.
The ‘relativity requirement’ ruled that citizens must demonstrate a personal interest in every legal action they bring, such as the protection of endangered species or the issue of nitrogen pollution. For an environmental organisation, this is not particularly problematic, as it is enshrined as an objective in their articles of association, but for citizens it is quite difficult: what personal interest does an individual have, for example, in the proper observance of protection rules for orchids or meadow birds? Such questions alone led to endless discussions in court. There was a risk that citizens would find it even more difficult to stand up for general, societal interests.
The ‘duty of care’ This meant that citizens had to take the first opportunity in a procedure to raise a legal issue, for example during a public inquiry or an appeal. Otherwise, it was irrevocably too late and you could no longer raise the matter before a court afterwards. In practice, this meant that you had to engage a solicitor almost immediately, even at the public inquiry stage. This led to class-based justice: access to the courts was mainly for those who could afford it. The annulment of this specific obligation comes as no surprise. An earlier decree containing a similar obligation (‘no objection, no appeal’) was annulled by the Constitutional Court as recently as 2019. (previous judgement).
Whilst the legislator introduced these conditions to speed up proceedings, in practice they appear to do nothing but prolong them. Before the court debates could turn to the substance of the case, there were interminable discussions about whether citizens even had the right to use certain legal remedies to challenge an allegedly unlawful permit. The Court is now putting an end to these endless and time-consuming debates, which only benefited lawyers. The coalition of nature and environmental organisations therefore calls on the legislator to take public consultation, participation and access to justice seriously from now on, rather than undermining them.
Of the 80,000 planning permissions issued in Flanders each year, barely one per cent are challenged in court. That is a drop in the ocean. In more than half of those cases, however, the court does rule that the permit is clearly unlawful. And so the citizen did indeed have a valid point. Very occasionally, even substantively sound cases such as social housing or structural reinforcement stumble over overly complex rules; that cannot be denied. But you do not solve that by generally preventing citizens from accessing the courts. You do so by improving the rules and by issuing higher-quality planning permission.
Read more about the judgement of 11 april 2023