Consequences of EU air quality directives for spatial development plans in various EU countries

Summary

Since 2001, when the first Daughter Directive on Air Quality was transposed into Dutch national law, more than 40 spatial plans proposed by authorities have been appealed by stakeholders on grounds of possible breaching of air quality limit values. In about one-third of the cases, the appeal was sustained by the highest court of justice on these matters because of air quality reasons, which resulted in the rejection of the plans. This concerned zoning plans for development of homes and business parks, permits for industrial activities, and plans for road construction or modification. The Dutch jurisprudence has clearly demonstrated the necessity of very detailed impact assessments, before permits for spatial developments can be granted. Moreover, air quality that does not meet the limit values can mean calling a halt to spatial developments, thereby conflicting with the general approach which Dutch authorities and companies have used in the past to assess the consequences of their (spatial) plans.

In our investigation on similar issues to these in other EU countries, we found that only few court cases of this type have occurred in the other EU countries, while breaches of air quality limit values and the limit values enhanced by the margin of tolerance do occur in other EU countries as well. To explain this situation, we have studied the transposition and application of the first Daughter Directive on Air Quality in seven member states: Austria, Belgium (Flanders), France, Germany, the Netherlands, Sweden and the UK. The Netherlands was found to have implemented the first EU Daughter Directive on Air Quality in a relatively strict fashion compared to other countries, as seen below.

1. Enforcing a strict legal coupling between air quality policy and spatial planning policy.
   Not only are all plans that directly affect air quality subject to an impact assessment, but also plans that affect exposure of the population to polluted air. If the impact assessment does not show how all relevant (future) limit values will be met, or how the plan fits into a general policy to meet the limit values, the court may reject it upon appeal.
2. Perceiving limit values as absolute limit values. In the Netherlands, limit values are understood as absolute limit values, whereas in other countries (Belgium, France, UK), the need to meet a limit value is weighted with other interests when deciding on whether to grant permits. Although Germany also perceives limit values as being absolute, the consequences for granting permits for spatial developments are not as far-reaching as in the Netherlands.
3. Enforcing limit values to protect human health apply to the whole of the Netherlands. In principle, these limit values apply in all other countries to anywhere in the outdoors. However, Germany and Austria, at least, infer from the nature of the limit values that they only have to be met at locations where people can be expected to be exposed for a period that is significant compared to the averaging period of the limit value.
4. In the Netherlands, air quality is assessed with much detail, because it is based on a combination of measuring and modelling with high spatial resolution. Consequently, many places are designated as locations where air quality limit values are breached, particularly in built-up areas close to busy roads. A limited number of countries also employ models with high spatial detail, but many countries only use measurements to assess air quality.    

Therefore, while most countries show exceedances of limit values, and all countries base their policy on the same EU air quality directives, considerable differences exist between member states with respect to the role limit values play in granting permits for new (spatial) developments.