Nature Balance 2006: Building and nature
The European Birds Directive and Habitats Directive have not led to fewer development plans.
The Netherlands: still room to build
Over the last 15 years Dutch administrative and legal practice has got to know the European Birds Directive and Habitats Directive well. While these directives were being transposed into Dutch law they already provided direct protection for Dutch conservation values. Several controversial legal proceedings ensued, and the view that further building in the Netherlands was impossible became widely held: the Netherlands was ‘full up’.
A survey of building plans has revealed that the European directives, and the subsequent amendments to the Dutch Flora and Fauna Act and Nature Conservancy Act, have not led to fewer building plans. Applications for discretionary building permits under the Flora and Fauna Act grew in number from 35 in 2002 to about 100 in 2006. Most of them were granted. Moreover, exemptions are always rejected on formal grounds, which means that a substantive improvement can still lead to the granting of a discretionary permit.
Nature conservation law is becoming increasingly integrated into spatial planning legislation. This assimilation of nature conservation law into planning means that municipal and provincial councils can determine what is legally possible as early as the strategic planning stage. Judges review cases for compliance with the duty of due care and not the protected conservation values.
The Common Spadefoot toad is one of the species for which a discretionary permit is required under the Flora and Fauna Act (photo: Mark van Veen)
