On December 16, 2020, the Administrative Law Division of the Council of State issued an important ruling on spraying zones in zoning plans. This concerned a procedure against the adoption of a zoning plan in the municipality of Neder-Betuwe. It is established case law that a target distance must be maintained between agricultural activities with possible use of plant protection products and sensitive functions such as, for example, housing. This target distance is 50 meters. According to established case law of the Administrative Law Division of the Council of State, it is possible to deviate from this target distance on the basis of a site-specific study, with justification.
Requirements site-specific research
This site-specific research must meet a number of requirements. In this ruling, the Council of State even indicates that high requirements must be set for this investigation, because plant protection products can have serious negative effects on human health. Thus, site-specific conditions must be explicitly included in the assessment. The site-specific research must further have a sound scientific basis. In previous rulings, the Council of State had determined that the report “Drift exposure of bystanders and residents due to orchard spraying” (PRI Report 609, May 2015), by Wageningen University & Research (hereinafter: PRI 2015 report) is scientifically insufficiently adequate (ABRvS March 30, 2016, ECLI:NL:RVS:2016:855 (Houten) and ABRvS June 6, 2018, ECLI:NL:RVS:2018:1741 (Wijchen). This ruling reaffirms that Report PRI 2015 is not a sound basis for the site-specific study.
In the Wijchen case, local residents had submitted an expert report that used a formula based on PRI data from studies in the period 2008-2012 that were published and therefore verifiable. This is the so-called Nijkamp formula. This formula had been adopted by the City Council’s expert in a modified expert report. Subsequently, based on that modified expert report, the Council of State itself decided the case. In the Neder-Betuwe case, a modified expert report based on the Nijkamp formula had also been submitted by the municipal council. Unlike in the Wijchen case, the Council of State now had to assess whether the Nijkamp formula constituted a sufficiently sound basis. The expert called in by the administrative judge, the Stichting Advisering Bestuursrechtspraak (StAB), came to the conclusion that there is no sufficient scientific basis for a number of factors in the Nijkamp formula. These factors concern 1) the relationship between drift deposition and drift exposure through the air; and 2) the correction factor to be used for the use of windbreaks. The Council of State follows the StAB opinion. The site-specific study therefore does not meet the requirements. It is therefore not possible to deviate from the target distance. In this ruling, this leads to annulment of the decision to adopt the zoning plan.
What stands out in the statement?
Two things stand out. First, the line in the Houten and Wijchen rulings is confirmed and continued. In the time behind, the Council of State has in several rulings deemed a shorter distance than 50 meters acceptable, but in all those cases it was insufficiently substantiated by the parties that the site-specific research, whether or not based on the Nijkamp formula, was not sound (see for example ABRvS 25 March 2020, ECLI:NL:RVS:2020:869 (Rhenen)).
Secondly, it is important to note that the guideline distance of 50 meters is a rule of thumb that also has insufficient scientific support. For the time being, the Council of State is not addressing the argument put forward in these proceedings that a greater guideline distance should apply to a standard orchard.
What does this mean for practice?
At this time, the exact relationship between drift deposition and airborne drift exposure has not been scientifically established. Nor is it established what the effectiveness of windbreaks is and what correction factor can be used in that case. These factors should therefore be omitted from a formula that serves as the basis for a site-specific study. Only when sufficient scientific research has been done on this subject can these factors be included again in a site-specific study. Until then, only in a limited number of cases can a shorter distance than the guideline distance of 50 meters be used as a spraying zone.
One of those who had appealed the zoning plan was assisted by Mr. Ernst Plambeck . Do you have a question about spray zones in a zoning ordinance? If so, contact him or one of our other attorneys in the Government Practice Group.
