CASE OF BENTHEM v. THE NETHERLANDS
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
C. Russo
10. Mr. Albert Benthem, who was born in 1927, lives at Noordwolde (municipality of Weststellingwerf), where he used to own and run a garage. 11. On 5 April 1976, he applied to the municipal authorities, in accordance with the Nuisance Act 1952 (see paragraphs 19-22 below), for a licence to bring into operation an installation for the delivery of liquid petroleum gas ("LPG") to motor vehicles. The installation comprised a surface storage tank with a capacity of 8 cubic metres. The application was made public in order to enable those wishing to object to do so. On 2 June 1976, three neighbours expressed their fear of fire and an explosion being caused by lightning. 12. On 11 August 1976, the municipal authorities granted the licence, subject to fifty-six conditions which they considered would counter the dangers in question. They referred to a letter in which an official of the Groningen Labour Inspectorate had indicated that he agreed with such a course. 13. On 9 August 1976, the Regional Health Inspector had written to the municipal authorities to advise them to refuse a licence; in his view, the proximity of houses involved excessive risks. On 17 September, he lodged an appeal with the Crown (Kroonberoep; see paragraphs 24-26 below). The municipal authorities informed Mr. Benthem of the appeal on 6 October 1976. They stated that since it had no suspensive effect, he could erect the installation. However, they added that if he did so, they would not be liable for any financial losses he might sustain in the event of the licence being cancelled. 14. The Chairman of the Administrative Litigation Division of the Council of State (Afdeling voor Geschillen van Bestuur van de Raad van State) - to which Division it fell to investigate the matter and then advise the Crown - sought information from the Minister of Public Health and Environmental Protection (sections 26 and 32(c) of the Council of State Act; see paragraphs 24 and 25 below). This information was supplied, in a letter of 7 February 1977, by the Director General for Environmental Protection; he expressed the view that the appeal was well-founded as he considered that further conditions ought to be attached to the licence. 15. After a hearing in the presence of the parties, during which the applicant was heard on 22 December 1977, the Chairman of the Division asked the Director General for additional information. The latter explained, in a letter of 18 May 1978, that the situation had changed: greater importance was now attached to the dangers involved in storage and delivery. He shared the view of the Chief Inspector of Public Health that, pending revision of the current officially-recommended standards, there should not be more than twenty-five houses within a radius of 150 metres from the gas tanks and dispensers, nor less than 25 metres between the installation and the nearest houses. The Director General therefore concluded that the licence sought by Mr. Benthem should be refused, as these conditions were not satisfied. 16. At a hearing held on 12 September 1978, the applicant argued that the Chief Inspector’s "interim position", as well as being inadequately motivated, was not based on sufficiently sound technical grounds. Having been asked by the Chairman of the Division to elaborate on his opinion, the Director General provided, on 30 November 1978, further details concerning the safety hazards; he stated that, pending the results of a study (which was being undertaken because of the many appeals outstanding), a cautious attitude should be adopted when granting licences. He thus confirmed his earlier position. 17. On 8 June 1979, the Administrative Litigation Division sent to the Minister of Public Health and Environmental Protection an opinion recommending that the licence be refused; a draft of the Decree to be adopted was attached thereto. 18. On 30 June 1979, by a Decree in the same terms as the draft, the Crown quashed the municipal authorities’ decision. It considered that a different view should be taken regarding the distance between an LPG installation and the neighbouring houses and that, in the particular circumstances, the risks could not be eliminated merely by the imposition of additional conditions. As a result, the municipal authorities issued an order directing Mr. Benthem to cease operating his installation. He lodged an appeal against this decision, but it was confirmed by the Crown by a Decree of 13 June 1980. A second decision - dated 10 October 1980 and providing for the closure of the installation by the authorities themselves - was quashed, on formal grounds, by the Judicial Division (Afdeling Rechtspraak) of the Council of State on 26 July 1982. According to information which was given to the Court at the hearings and was not contested, the installation was not closed down until February 1984. At the beginning of that year, Mr. Benthem had been declared bankrupt. 19. The Nuisance Act 1952 prohibits, in the absence of a licence, the erection, bringing into operation, exploitation, extension or modification of certain installations which may be a source of danger, damage or nuisance to their surroundings (section 2 (1)). The installations concerned are listed in a Decree, and they include those for delivering LPG. 20. Licence applications, which are submitted to the municipal authorities, are first of all notified to the public, who may make oral or written objections. Certain government bodies - such as the Regional Health Inspector - are also given an opportunity to express their views. The decision lies with the municipal authorities (section 4). They may refuse a licence only if the erection, bringing into operation, exploitation, extension or modification of the installation would result in danger or, as regards property, industry or health, damage or serious nuisance, and if such danger, damage or nuisance could not be sufficiently averted by the imposition of conditions (section 13 (1) in the version in force at the relevant time). Once issued, a licence covers both the original holder and his assignees (section 14). It may be granted by the municipal authorities for a limited period or subject to conditions binding upon the licensee (sections 16 and 17). 21. After the persons and authorities involved have been informed of the decision, the applicant for the licence, anyone who duly raised objections and the government bodies concerned may lodge an appeal with the Crown within a certain period (section 20, which was then in force). The Crown determines the appeal on the advice of the Administrative Litigation Division of the Council of State (section 29). An appeal has no suspensive effect but, under section 60 (a) of the Council of State Act (Wet op de Raad van State), the appellant may ask the Chairman of the Division to defer implementation of the decision or to order interim measures. 22. At the close of the proceedings, the Crown will confirm, amend or quash the initial decision. 23. Under the Constitution, the person of the King - or the Queen - is inviolable. The King takes his decisions on the responsibility of a Minister, who has to countersign them. The expression "the Crown", when decision-making powers are being exercised, is commonly used to denote the King together with the Minister or Ministers. 24. The Crown gives rulings in administrative litigation which is brought before it on appeal. In carrying out this function, the Crown will not take a decision until the Administrative Litigation Division of the Council of State has investigated the matter and prepared a draft decision (section 26 (1) of the Council of State Act). The members of the Division, whose number is fixed by the Crown but cannot be less than five including the Chairman, are chosen by the Crown from amongst the members of the Council of State and on its recommendation. The Administrative Litigation Division is to be distinguished from the Judicial Division which itself decides cases falling within its competence. 25. The Chairman of the Administrative Litigation Division calls for the necessary official reports and informs the Minister concerned thereof (section 32 (c) (1)). The interested parties may submit such documentary evidence as they consider necessary (section 34). A public hearing enables them, if they so wish, to argue their cases (section 45). Like the Chairman of the Division, they may call witnesses or experts, put questions to them and comment on any evidence given (sections 41 (4), 46 (5) and (6) and 48). The Division deliberates in camera (section 51); it may carry out on-site inspections (section 52), ask for additional official reports, on which the interested parties may comment (section 54), and hold further hearings (section 55). It then draws up a draft Royal Decree, which it submits to the Crown together with its advice (section 56). The Minister concerned has six months to inform the Division of any objections he may have and ask it to reconsider the case (section 57). 26. After receiving the Division’s advice or further advice, the Crown issues a Royal Decree within six months. This time-limit may be extended by three months (section 58 (1)). After it has expired, the Crown must decide in accordance with the Division’s advice (section 58 (a)). Prior to that, it may depart from the advice, but only if the Minister concerned has first consulted the Minister of Justice or, where the latter is himself concerned, if he has first consulted the Prime Minister (sections 57 and 58 (2) (a) and (b)). In practice, the Crown very rarely takes this course. The Crown’s decision, against which no further appeal is available, may be based on considerations of law or of expediency. The Decree, which incorporates the reasons therefor, is immediately sent to the interested parties and the Division. It is then made available for one month for public inspection at the Secretariat of the Council of State (section 59 (2)). If the Decree departs from the advice, it is published in the Official Gazette (Staatsblad) together with the Minister’s report, which contains the Division’s draft and the Minister’s correspondence with the Division and with the Minister of Justice or the Prime Minister (section 58 (3)).