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Relativity requirement and the Water Act

Relativity requirement and the Water Act

In a ruling of 25 April 2017 (ECLI:NL:RBMNE:2017:2109) the relativity principle was tested in an appeal against a water permit for a hydropower station. The reliance of the appellant competitor on the equality principle was not successful.

Relativity
The Minister argued that the norms on which the appellant anglers rely do not serve to protect the anglers. This defence failed. It follows from section 2.1 paragraph 1, opening words and under c, of the Water Act that the legal rules in the Act not only serve to protect the interests of the ecological quality of the water system, but also to protect the social function of the water system. The Minister had not disputed that the anglers have an interest in the social function of the water system (the Maas) as fishing water.

Correction on relativity?
In respect of competitor Eco Energie, the Minister also relied on section 8.69a General Administrative Law Act (Awb). Eco Energie argued however that on the basis of the equality principle, a correction should be made to this. A successful reliance on this principle requires that a company is actually disadvantaged as obligations are imposed on that company, in a situation which as regards the applicable statutory obligations and the facts is sufficiently comparable, which its competitor, as a result of the breach of the relevant norm, does not have to satisfy.

No breach of the equality principle
The court ruled that this was not a case of sufficiently comparable cases and that there was therefore no reason to apply a correction to section 8:69a of the Awb. According to the court, the Minister was able to take the view that he, before processing the application of Eco Energie, has first given WKC Borgharen the opportunity to supplement its original application. In addition, the court determined that Eco Energie had not indicated at the time that it did not agree with this course of events. In the view of the court, Eco Energie’s application was for that reason not (sufficiently) comparable with the supplementation which WKC Borgharen had submitted in respect of the earlier application.

Substantive examination
Substantively it is ruled by the court that there was no reason to declare section 5, paragraph 2 of the Granting of water permits hydropower stations in national waters policy rule (the Policy Rule), which allows for granting permits, nonbinding/not to apply it. The permit regulation that allows maximum 0.1% fish mortality must be interpreted strictly. This follows from the wording of this regulation and from the Policy Rule. In view of this, the StAB rightly tested on the basis of a worst case scenario. The conclusion of the advice of the StAB is that it cannot be guaranteed with a high degree of certainty that the norm set in the permit can be satisfied. For that reason the appeal was well-founded and the permit annulled.

Finally
In the rulings of 28 December 2016 (ECLI:NL:RVS:2016:3453, ECLI:NL:RVS:2016:3451 and ECLI:NL:RVS:2016:3454) the Administrative Jurisdiction Division of the Council of State has for the first time, and to date the only time, allowed a reliance on the equality principle and made a correction to the relativity principle. In this connection I refer to an article by my colleague Willyne van Osch who discussed these rulings.

By Jasper Molenaar

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