Khyathi Rudraraju 4827198 Sai Nikhil Nadella 4818792 Assignment Legal 1

February 25, 2019 Critical Thinking

Khyathi Rudraraju 4827198
Sai Nikhil Nadella 4818792
Assignment Legal 1: Planning law
Question 1
Requirements from EU law are equal for all EU-member states.

(a) Which requirements of EU law apply to the decision-making for a new national motorway such as the connection motorway between A4 and A44?
(b) Give a short overview (max. 300 words) of the contents of the EU requirements.

Answer: (a) Currently, there are no specific requirements for planning procedures of new infrastructure in the European member states. However in the Netherlands and other European states the infrastructure planning of national importance such as connection motorway are influenced by certain European environmental directives and every member state has to comply with these directives.

The most relevant directives are:
• The Environmental Impact Assessment Directive: for project assessment;
• The Strategic Environmental Assessment Directive: for plan and program assessment;
• The Birds Directive;
• The Habitats Directive;
• The Water Framework Directive: for infrastructures with potential risks of water.

(b) The short overview of the contents of EU requirements is
Environmental impact assessment: EIA is usually carried out to ensure that the decision makers consider the environmental impacts when deciding whether or not to proceed with the project. It is done to make sure that the environment is protected, so that humans and environment can co-exist in harmony.

The Strategic Environmental Assessment (SEA): It aims to ensure that environmental and possibly other sustainability aspects are considered effectively in policy, plan and program making. While EIA is usually applied to actual projects by individuals or companies, SEA applies to policies, plan and programs most often proposed by organs of state.

The Birds Directive: Europe is a home to more than 500 wild bird species. But at least 32% of the EU’s bird species are currently not in a good conservation status. The Birds Directive aims to protect all of the 500 species naturally occurring in the European Union. Concerned with their decline, Member States unanimously adopted the Directive 79/409/EEC in April 1979. It is the oldest piece of EU legislation on the environment and one of its cornerstones. Amended in 2009, it became the Directive 2009/147/EC.

Habitat Directive: The Habitats Directive ensures the conservation of a wide range of rare, threatened or endemic animal and plant species. Some 200 rare and characteristic habitat types are also targeted for conservation in their own right. The Birds and Habitats Directives have had to evolve to reflect successive enlargements of the European Union.

Water framework directive: It was adopted on 23 October 2000 and is the operational tool setting the objectives for water protection for the future.

Question 2
A drilled tunnel is much more expensive than a motorway on ground level.

Who (that is: which institution) takes the decision to construct a tunnel or a motorway on ground level?
Answer: The decision to construct a tunnel or a motorway on ground level generally depends on the interrelated domains of power. These are
Administration;
Politics;
Justice.

In every domain of power a positive decision on the construction of the infrastructure has to be taken. In order to commence the new proposal/project all of the three domains should agree upon a common decision. Else, decision-making makes a loop and goes back to a previous phase.
Another characteristic of infrastructure decision-making is that in each domain of power
a different actor is dominant with specific instruments to govern decision making.

In administration domain the dominant actor is the Minister of infrastructure and the environment who provides structural vision including preferred decision and the final track decision and permits.

In politics domain, the dominant actor is the Second chamber of Parliament where there is involvement of municipalities and provinces in preparation of draft track decision.

In justice domain the dominant actor is ‘Administrative Jurisdiction Division of the Council of State which handles judicial testing. The domains of power do not stand completely apart from each other, but have mutual connections and are interrelated and make the final call on infrastructure decision making.

Question 3:
Drilled tunnels are technically complex products. The structural requirements for tunnels are laid down in a document which has a legally binding status. What is the name of this document?
Answer: The document that has the structural requirements for tunnels is “Building Decree”. It is a national document which has a legally binding status containing regulations concerning buildings and other structures. It consists of numerous technical regulations for the construction of new structures as well as for existing ones.

Building Decree expresses the minimum technical requirement such as stability, load bearing capacity, ventilation, and minimum amount of day light etcetera.

Usually, the structural engineer takes care that the structure abides with the regulations of the Building Decree.

Question 4:
Suppose that for some parts of the new motorway land owners need to be expropriated by national government.

What can be said about the height of the compensation the land owners receive in case of expropriation?
Answer: Expropriation is a legal act where the property is generally seized from the owner. The Expropriation Act determines what types of damages or injuries to property rights will be considered for compensation (arts. 40-45 Expropriation Act). Presently, the affected property owners receive compensation for various damages under the expropriation law. In some cases the land owners are entitled for complete compensation. The compensation is either based on the current value of his land and buildings erected on it, or the future value of the land and buildings, depending on whichever is the highest. Generally market value of the land and the buildings is the basis for the compensation. Comparatively, the Dutch powers to expropriate are relatively large and satisfactory than the other countries.
Question 5
How would you describe the planning procedure for new national infrastructure in the Netherlands?
That is: is it hierarchic, or is it based on finding a solution which is acceptable for all public and civic parties involved, or something else?
Answer: The planning procedure for new national infrastructure in the Netherlands is more or less based on finding a solution which is acceptable for all public and civic parties involved.

The decision to start and to explore an infrastructural problem is of the Minister of Infrastructure and the Environment. But the process of exploration also involves the views of civilians, societal organizations and the bodies of government concerned. The aim is to enlarge (public) support for a project. Now, if we take the concept of structure vision, if the draft of the structure vision is ready, everybody has the opportunity to bring forward his views (art. 6 IPA). This allows for comments on the draft and gives the minister the opportunity to process the views in the final version of the structure vision. The final version of the structure vision is discussed in parliament and most likely will be discussed in the municipal and provincial councils concerned as well.

After the structure vision generally you arrive at a preferred decision. Now, if the public is in conflict with the preferred decision, civilians or special interest groups like environmentalists can pitch in alternatives to the preferred decision.

Also in case of Draft track decision, not only affected municipalities, but also private persons, organizations and special interest groups can put forward their views. The IPA specifies that views can be put forward by ‘everyone’ (art. 11, para.1). Further, after the track decision is taken, Interested parties (for instance environmental interest groups), or interested civilians, who had reacted in the previous stages, can lodge appeal against the track decision with the Administrative Jurisdiction Division of the Council of State. The Council of State has the authority to nullify the minister’s decision to take the track decision if it is in conflict with the law.

Not only in regards to track decision but also the decision to grant permit(s) for the construction of new infrastructure is subjected to appeal. Interested parties have the power to lodge appeal with the Council of State even if they are limited in their appeal.

In this way the public, interested parties and the civic groups are actively involved in the decision making, where they can express their views. This helps in finding a solution which is acceptable for all public and civic parties involved.