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In de vorige kroniek zijn vijf tendensen in het omgevingsrecht beschreven: 1. integratie van vergunningstelsels en van algemeen verbindende voorschriften, 2. het streven naar meer flexibiliteit en afwegingsruimte, 3. de programmatische aanpak, 4. vervanging van vergunningen door algemene regels en 5. rechtspraak gericht op belangenbescherming en finaliteit. Deze tendensen hebben zich in de afgelopen kroniekperiode voortgezet. Het belangrijkste moment in de afgelopen kroniekperiode was de dag waarop het wetsvoorstel voor een Omgevingswet werd ingediend.

In this paper we discuss recent developments in administrative court proceedings in the Netherlands, called the New Approach. Along with developments leading to the New Approach, it became clear that the insights from research on procedural justice deserve particular attention. The goals of the judge's actions in this respect are both that the proceedings are fair and just and that parties perceive the way they are being treated during proceedings as fair and just. Within the New Approach we discern five procedural justice elements: (1) respect, (2) voice and due consideration, (3) some influence on how proceedings will continue, (4) an explanation of how the proceedings will continue and (5) direct interpersonal contact. The introduction of the New Approach shows two important bottlenecks in Dutch administrative court proceedings, which are (i) the possible or supposed collision between legally right outcomes and procedural justice and (ii) the lack of uniformity and predictability. Although what we describe and discuss in this paper focuses on the Dutch situation, many of these considerations apply to administrative court proceedings in other countries. The themes and difficulties that face the administrative law judge seem to be common to many countries.

Flood risk management is a policy field in which the distribution of burdens and benefits plays an important role. As flood risks are distributed unequally among the members of society, people in risk areas benefit more from flood risk management than people living in a relatively ‘risk-free’ area. At the same time the infringements of property rights in the case of flood risk management are burdens that a small group of people have to bear in order to benefit a larger group of people, or in some cases, society as a whole. This unequal distribution of burdens is a distributional effect of flood risk management. This research defines distributional effects as ‘the negative consequences of lawful flood risk management that infringe possessions or property rights.’ For example, dispossession or devaluation of property or a loss of income. In order to reduce the adverse effects of flood risk management, compensation regimes are applied. Distributional effects cannot be studied without placing them in a broader context of distributive justice. Aristotelean distributive justice is mostly related to the distribution of benefits (rights, goods or, in this case, flood protection) or welfare, and can be applied to burdens as well. A consequence of the classification of the compensation for distributional effects as part of distributive justice is that a just distribution differs per society and per country, or even per region within a country. One can create a distributive standard to which the goods (or burdens) are allocated in a just manner, taking into account the specific context of the region, which does not demand absolute equality. Measures of flood risk management can be categorized in different strategies, classified by the European Floods Directive. European countries have one or more dominant strategies. The dissertation focusses on three jurisdictions: the Netherlands, the Flemish Region in Belgium and France. These jurisdictions have different dominant strategies, although all are broadening their flood risk management by using more than one strategy. Every strategy is connected to a specific compensation regime that mitigates the burdens caused by flood risk management measures. By changing from one strategy to another, the applicable compensation regime changes as well, although policy-makers are not in all cases aware of this consequence. This research shows that, by having this strong connection between strategies and compensation regimes, burdens are unequally spread internally in France and Flanders and are spread unequally externally between the three countries. The Netherlands can be seen as an example in which compensation takes place in a consistent manner in all strategies. Although the burdens are unequally spread, this does not automatically lead to the conclusion that France has an unjust distribution of burdens, because the perception of distributive justice also differs per country and time.

Het klassieke Nederlandse bestuursrecht is sterk geënt op de noties van een ondeelbaar algemeen belang en verticale publiekrechtelijke verhoudingen. In een tijd van voortgaande individualisering, privatisering, decentralisering en internationalisering zijn die uitgangspunten steeds verder onder druk komen te staan. Pogingen om het klassieke bestuursrecht vanuit de eigen logica te herzien zijn veelal onbevredigend en deels ook onvruchtbaar gebleken. Daarom is het tijd ook de grondbegrippen van het stelsel zelf opnieuw te doordenken. Hoe zou eventueel een ‘responsief’ model van bestuursrechtelijke rechtsbescherming vorm kunnen krijgen dat tegemoet komt aan de ‘gehorizontaliseerde’ en ‘gefragmentariseerde’ sociale werkelijkheid van het publiekrecht en tevens voldoende oog houdt voor de klassiek-rechtsstatelijke waarden waarop het bestuursrecht van oudsher is gefundeerd? Op zoek naar antwoorden op die vraag biedt dit proefschrift eerst een analyse van de ideeënhistorische en rechtstheoretische grondslagen van het huidige bestuursrecht. Vervolgens gaat het in op actuele discussies over het besluitbegrip, het relativiteitsvereiste en het evenredigheidsbeginsel. Uiteindelijk beoogt het mede vorm te geven aan een nieuw model van ‘rechtsstatelijk bestuursrecht’ dat meer dan het huidige is toegesneden op de sociale en institutionele context die het geacht wordt te reguleren.

This PhD thesis adresses the reactive instruction as an interadministrative supervisory instrument in spatial planning. The central question is: What are the benefits and the necessity of the reactive instruction as a specific interadministrative supervisory instrument in spatial planning? The reactive instruction has a unique position and function in spatial planning. The other general interadministrative supervisory instruments are no alternatives. The reactive instruction needs improvement, because the supervision in spatial planning lacks restraint.

The research focuses on the relation between municipalities, provinces and the Crown in Dutch spatial planning law. Specifically, it concerns the power of the provinces and the Crown to issue general ‘instructional rules’ (instructieregels) concerning the content of municipal zoning plans and other planning decisions. This power, which can be found in Articles 4.1 and 4.3 of the Dutch Spatial Planning Act, is a new instrument in Dutch spatial planning and is of paramount importance for the possibility of municipalities to make autonomous decisions concerning the regulation of land-use. The research addresses the legal questions surrounding the use of this new instrument. Not only are the answers to these questions important to the actual practice of the use of the instrument, but also for the legislative bill proposing the new Environmental Law Act (Omgevingswet), currently pending in the House of Representatives (Tweede Kamer), in which instructional rules play an important part. Instructional rules serve to set a framework aimed at policy impact. When setting spatial planning standards, lower-level administrative bodies only have discretionary powers (beslissingsvrijheid) within the provincial and national limits determined for the substance of the decision-making process, inter alia by instructional rules. This framework is set in order to ensure that the spatial-planning decisions taken at lower government levels comply with the policy as pursued by the regulatory government with respect to this setting of standards. Instructional rules have two legal effects. The first and main legal effect is that they must be taken into account by lower-level government authorities in their decision-making processes regarding spatial planning. The second legal effect is that instructional rules, based on the second paragraph of Article 4.1 and of Article 4.3 of SPA, respectively, may create the obligation for the municipal council to adopt a new land-use plan within a specified period. The SPA stipulates that an instructional rule can only be issued if this rule is necessary to protect a provincial or national interest with a view to good spatial planning. A higher-level government authority has an interest in options for spatial developments if these options influence the implementation of its policy. The instructional rule must be applied by a lower-level administrative body intending to take a spatial-planning decision. The rule includes directions on how this body should use one of its powers as based on the SPA. The limits of this power therefore also determine what obligations can be laid down in an instructional rule. The SPA has a specific instrument for the enforcement of instructional rules: the reactive instruction competence (reactieve aanwijzingsbevoegdheid). If a spatial-planning decision is the subject of a reactive instruction, the result is that the decision will not come into effect. This prevents that possibilities for use are created that are contrary to an instructional rule. The courts may be confronted by instructional rules in two ways. In the first place, the court can be requested to review whether a certain spatial-planning decision complies with an instructional rule. In the second place, the court can be asked to answer the question of whether a certain instructional rule is binding.

This PhD thesis discusses the question to what extent the Soil Protection Act (SPA) offers space for an integrated approach for deeper groundwater in addition alongside aspects of the soil quality other aspects can be referenced to the use, development or the management of soil in the decision-making. To assess this question, demands are made on the flexibility of the law and the possibility to make integral considerations. Due to this, a freedom of choice is available but this is not without limitations. The space that exists must remain inside the lines that are imposed in this regard in a democratic constitutional state. The legal tenability of the integrated approach is based on European law and legal principles. The SPA contains conditions that especially are useful to produce a case-to-case based area approach of the contamination of the deeper groundwater. These are: a phased remediation (article 38 clause 3 SPA), partial remediation (article 40 SPA), and a cluster approach (article 42 SPA). The use of these instruments is limited because the law prescribes in which specific cases they can be used. Moreover, the case-to-case approach in the SPA is not flexible enough for a broad application concerning the contamination of the deeper groundwater on an area scale. The biggest obstacle for an integrated approach is the absence of the possibility of a wide consideration of interests. In addition to the specific general interest of the protection of the soil, other relevant aspects for an integrated area oriented approach of the contamination of the deeper groundwater and private interests that do not correspond, can not be involved. After implementation of the regulation concerning an area oriented approach in paragraph 3b of chapter IV of the SPA, the possibilities for the approach of the contamination of the deeper groundwater on area scale are increased considerably. The case criterion (gevalscriterium) is partly abandoned, but not all obstacles are hereby solved. The limited consideration of interests remains problematic with the exception of the indication of an area. Therefore, the assessment of the control plan (beheerplan) does not allow room for a wide administrative consideration of interests. In an area oriented approach that is based on the SPA, problems with European regulation (Water Framework Directive, Groundwater Directive) can be negated. This might change if the extent of the polluted area increases significantly in comparison with what can be achieved through a stable end-point remediation (stabiele, milieuhygiënische, aanvaardbare eindsituatie). Moreover, the relation with environmental law principles is a point of particular interest. Because uncertain risks play an important role in an integrated area oriented approach of the deeper groundwater, there is a correlation with the precautionary principle (voorzorgsbeginsel). Additionally the polluter pays principle is a weak element .

This thesis is about adaptation to climate change in Dutch water management. Within this framework, questions about legal responsibilities and (effects of) threatening liability have been addressed. However no clear adaptation obligations have been found in international and European law, especially the international climate debate proved to have an agenda-setting effect. Within both the EU and the Netherlands, adaptation policy has been developed. The due care principle (codified in the Dutch GALA) holds a general obligation, however, for Dutch water management authorities to take (uncertain) climate risks into account in their policy decisions, especially when it comes to implementing their legal duties of care. This obligation requires further elaboration in the Dutch Water Act. It has been found that mainly the criteria of unlawfulness and causality expectedly will raise a special threshold in the establishment of tort liability within the adaptation to climate change framework. Nevertheless, tort liability for climate damage cannot be excluded. For the application of the Dutch system of ‘nadeelcompensatie’ (compensation for loss due to lawful government conduct) it should, on the one hand, be assumed that adaptation measures are to be regarded as ‘normal social developments’, which means victims should in principle tolerate measures being taken despite their disadvantages. On the other hand, the uncertainty of climate risks under certain circumstances is likely to influence the criterion of the ‘normal social risk’, granting victims a higher chance of successfully claiming compensation. Furthermore, the system of liability for structural defects (article 6:174 of the Dutch Civil Code) should not be applicable in cases water damage occurs by defects in water control structures, mainly because application of this liability system is hardly compatible with the integral management tasks in Dutch water management . At last, unlike the so-called prevention doctrine suggests, water management authorities in their different decisions at different stages of the adaptation process turn out not primarily and certainly not only to be affected by threatening liability. The prevention doctrine in all its simplicity seems to be unsuitable for making predictions in complex situations, as these may occur within the framework of adaptation to climate change in Dutch water management

This thesis is about adaptation to climate change in Dutch water management. Within this framework, questions about legal responsibilities and (effects of) threatening liability have been addressed. However no clear adaptation obligations have been found in international and European law, especially the international climate debate proved to have an agenda-setting effect. Within both the EU and the Netherlands, adaptation policy has been developed. The due care principle (codified in the Dutch GALA) holds a general obligation, however, for Dutch water management authorities to take (uncertain) climate risks into account in their policy decisions, especially when it comes to implementing their legal duties of care. This obligation requires further elaboration in the Dutch Water Act. It has been found that mainly the criteria of unlawfulness and causality expectedly will raise a special threshold in the establishment of tort liability within the adaptation to climate change framework. Nevertheless, tort liability for climate damage cannot be excluded. For the application of the Dutch system of ‘nadeelcompensatie’ (compensation for loss due to lawful government conduct) it should, on the one hand, be assumed that adaptation measures are to be regarded as ‘normal social developments’, which means victims should in principle tolerate measures being taken despite their disadvantages. On the other hand, the uncertainty of climate risks under certain circumstances is likely to influence the criterion of the ‘normal social risk’, granting victims a higher chance of successfully claiming compensation. Furthermore, the system of liability for structural defects (article 6:174 of the Dutch Civil Code) should not be applicable in cases water damage occurs by defects in water control structures, mainly because application of this liability system is hardly compatible with the integral management tasks in Dutch water management . At last, unlike the so-called prevention doctrine suggests, water management authorities in their different decisions at different stages of the adaptation process turn out not primarily and certainly not only to be affected by threatening liability. The prevention doctrine in all its simplicity seems to be unsuitable for making predictions in complex situations, as these may occur within the framework of adaptation to climate change in Dutch water management

This PhD thesis addresses the legal system of European water management and more specifically the role of transboundary water pollution in this system. It focuses on the question of whether the system ensures that the beneficial uses of international river basins are shared in a reasonable and equitable manner among riparian states, without negatively affecting water quality. Neither international law nor European legislation defines what exactly constitutes reasonable and equitable distribution and no independent criterion exists based on which a certain distribution can be declared to be fair or unfair in advance, and using which such a distribution can be made. For this reason, this study uses a procedural fairness concept, based inter alia on the UN Watercourses Convention: if the riparian states involved use a certain fair procedure to determine the distribution and if this includes certain explicitly defined factors such as geography, the environment and socio-economic needs, the result of this procedure is considered to be reasonable and equitable. European law apparently decided to have Member States themselves determine this distribution in mutual consultation: it is true that the EU imposes requirements for water quality, but it includes no instructions on how the resulting ‘pollution allowance’ (verontreinigingsruimte) should be distributed among the riparian states in a river basin. The Member States are obliged, however, to cooperate with the other riparian states in the river basin. Although a large number of instruments is available for cooperation on both the local and regional level as well as on the level of the Member States, so far international management plans governing the Dutch river basins include no arrangements regarding the distribution of pollution allowance or regarding the restriction of transboundary pollution, which for the Netherlands remains a significant problem. One of the causes of this patchy cooperation is the difference in organisational structures on either side of the border and the fact that European legislation does not actually require cooperation to result in distribution arrangements regarding pollution allowances. The fact that transboundary pollution is not countered by cross-border cooperation poses some serious threats to water management authorities, as they are bound by European law to various obligations of result and obligations of best efforts regarding the required water quality. Although international law, European law and national law offer legal instruments to enforce reasonable and equitable sharing of the pollution allowance, and – if enforcement fails – allow for damages to be paid, these instruments only really work if such a distribution is determined up front. This thesis concludes that the current system of European water management is incomplete since it doesn’t provide for a reasonable and equitable sharing of the beneficial uses of international river basins, leaving too much room for transboundary pollution and thereby endangering water quality. This thesis also contains recommendations to change the system and ensure that a reasonable and equitable distribution is made.