ReNEUAL 2.0

The European Regional/Spatial Planning Charter (Appendix to Recommendation No. R (84)2) states

• on the concept of regional/spatial planning:

"Regional/spatial planning gives geographical expression to the economic, social, cultural and ecological policies of society.It is at the same time a scientific discipline, an administrative technique and a policy developed as an interdisciplinary and comprehensive approach directed towards a balanced regional development and the physical organisation of space according to an overall strategy."

• on the characteristics of regional/spatial planning:

"Man and his well-being as well as his interaction with the environment are the central concerns of regional/spatial planning, its aims being to provide each individual with an environment and quality of life conducive to the development of his personality in surroundings planned on a human scale.
Regional/spatial planning should be democratic, comprehensive, functional and orientated towards the longer term.
Democratic: it should be conducted in such a way as to ensure the participation of the people concerned and their political representatives,
Comprehensive: it should ensure the co-ordination of the various sectoral policies and integrate them in an overall approach,
Functional: it needs to take account of the existence of regional consciousness based on common values, culture and interests sometimes crossing administrative and territorial boundaries, while taking account of the institutional arrangements of the different countries,
Long-term orientated: it should analyse and take into consideration the long-term trends and developments of economic, social, cultural, ecological and environmental phenomena and interventions."

• on the operation of regional/spatial planning:
  

"Any regional/spatial planning policy, at whatever level, must be based on active citizen participation.
It is essential that the citizen be informed clearly and in a comprehensive way at all stages of the planning process and in the framework of institutional structures and procedures."

Following the European Regional/Spatial Planning Charter (Appendix to Recommendation No. R (84)2) the fundamental objectives of regional/spatial planning are "balanced socio-economic development of the regions", "improvement of the quality of life", "responsible management of natural resources and protection of the environment", and "rational use of land". The implementation of regional/spatial planning objectives "is essentially a political matter" which "seeks co-ordination between the various sectors", "facilitates co-ordination and co-operation between the various levels of decision-making and the equalisation of financial resources."

ECtHR, judgement Powell and Rayner v. the United Kingdom (9310/81) 21 February 1990 (on noise exposure in the neighbourhood of Heathrow airport):

"41. Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 (art. 8-1) or in terms of an "interference by a public authority" to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention [...]. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8 (art. 8-1), "in striking [the required] balance the aims mentioned in the second paragraph (art. 8-2) may be of a certain relevance." [...].
42. As the Commission pointed out in its admissibility decisions, the existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft have without question become necessary in the interests of a country’s economic well-being. According to the uncontested figures supplied by the Government, Heathrow Airport, which is one of the busiest airports in the world, occupies a position of central importance in international trade and communications and in the economy of the United Kingdom [...].. The applicants themselves conceded that the operation of a major international airport pursued a legitimate aim and that the consequential negative impact on the environment could not be entirely eliminated.
43. A number of measures have been introduced by the responsible authorities to control, abate and compensate for aircraft noise at and around Heathrow Airport, including aircraft noise certification, restrictions on night jet movements, noise monitoring, the introduction of noise preferential routes, runway alternation, noise-related landing charges, the revocation of the licence for the Gatwick/Heathrow helicopter link, a noise insulation grant scheme, and a scheme for the purchase of noise-blighted properties close to the Airport [...]. These measures, adopted progressively as a result of consultation of the different interests and people concerned, have taken due account of international standards established, developments in aircraft technology, and the varying levels of disturbance suffered by those living around Heathrow Airport. [...].
44. On the other hand, section 76(1) of the Civil Aviation Act 1982 limits the possibilities of legal redress open to the aggrieved person [...]. However, it is to be noted that the exclusion of liability in nuisance is not absolute: it applies only in respect of aircraft flying at a reasonable height and in accordance with the relevant regulatory provisions, including the Air Navigation (Noise Certification) Order 1987 [...].
Since a forerunner of section 76(1) was enacted in 1949, successive Governments in the United Kingdom have proceeded on the view that the problems posed by aircraft noise are in general better dealt with by taking and enforcing specific regulatory measures to ensure that disturbance caused by aircraft noise is minimised, to the exclusion of having the matter settled by the case-law of the courts on the general criterion of reasonableness in any actions for nuisance which might be brought at common law. It is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation. It is not without significance that the provisions of section 76(1) are comparable to those of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface [...].
45.In view of the foregoing, there is no serious ground for maintaining that either the policy approach to the problem or the content of the particular regulatory measures adopted by the United Kingdom authorities gives rise to violation of Article 8 (art. 8), whether under its positive or negative head. In forming a judgment as to the proper scope of the noise abatement measures for aircraft arriving at and departing from Heathrow Airport, the United Kingdom Government cannot arguably be said to have exceeded the margin of appreciation afforded to them or upset the fair balance required to be struck under Article 8 (art. 8). [...].

ECtHR, judgement López Ostra v. Spain (16798/90) 9 December 1994 (on toleration of water pollution by a tannery):

"51. Naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.
Whether the question is analysed in terms of a positive duty on the State - to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 (art. 8-1) -, as the applicant wishes in her case, or in terms of an "interference by a public authority" to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8 (art. 8-1), in striking the required balance the aims mentioned in the second paragraph (art. 8-2) may be of a certain relevance [...].
52. It appears from the evidence that the waste-treatment plant in issue was built by SACURSA in July 1988 to solve a serious pollution problem in Lorca due to the concentration of tanneries. Yet as soon as it started up, the plant caused nuisance and health problems to many local people [...]
Admittedly, the Spanish authorities, and in particular the Lorca municipality, were theoretically not directly responsible for the emissions in question. However, as the Commission pointed out, the town allowed the plant to be built on its land and the State subsidised the plant’s construction [...].
53. The town council reacted promptly by rehousing the residents affected, free of charge, in the town centre for the months of July, August and September 1988 and then by stopping one of the plant’s activities from 9 September [...]. However, the council’s members could not be unaware that the environmental problems continued after this partial shutdown [...]. This was, moreover, confirmed as early as 19 January 1989 by the regional Environment and Nature Agency’s report and then by expert opinions in 1991, 1992 and 1993 [...].
55. On this issue the Court points out that the question of the lawfulness of the building and operation of the plant has been pending in the Supreme Court since 1991 [...]. The Court has consistently held that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law [...].
At all events, the Court considers that in the present case, even supposing that the municipality did fulfil the functions assigned to it by domestic law [...], it need only establish whether the national authorities took the measures necessary for protecting the applicant’s right to respect for her home and for her private and family life under Article 8 (art. 8) [...].
56. It has to be noted that the municipality not only failed to take steps to that end after 9 September 1988 but also resisted judicial decisions to that effect. In the ordinary administrative proceedings instituted by Mrs López Ostra’s sisters-in-law it appealed against the Murcia High Court’s decision of 18 September 1991 ordering temporary closure of the plant, and that measure was suspended as a result [...].
Other State authorities also contributed to prolonging the situation. [...].
57. The Government drew attention to the fact that the town had borne the expense of renting a flat in the centre of Lorca, in which the applicant and her family lived from 1 February 1992 to February 1993 [...].
The Court notes, however, that the family had to bear the nuisance caused by the plant for over three years before moving house with all the attendant inconveniences. They moved only when it became apparent that the situation could continue indefinitely and when Mrs López Ostra’s daughter’s paediatrician recommended that they do so [...]. Under these circumstances, the municipality’s offer could not afford complete redress for the nuisance and inconveniences to which they had been subjected.
58. Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being - that of having a waste-treatment plant - and the applicant’s effective enjoyment of her right to respect for her home and her private and family life.
There has accordingly been a violation of Article 8 (art. 8).

ECtHR, judgement Buckley v. United Kingdom (20348/92) 25 September 1996 (on a refusal to grant a permanent planning permission for the residential use of three caravans):

"62. According to the Government, the measures in question were taken in the enforcement of planning controls aimed at furthering highway safety, the preservation of the environment and public health. The legitimate aims pursued were therefore public safety, the economic well-being of the country, the protection of health and the protection of the rights of others. The Commission accepted this in substance but noted that the aspect of highway safety, which figured prominently in the Council's decisions of 8 March 1990, the inspector's report of 14 February 1991 and, by implication, the Secretary of State's decision of 16 April 1991 [...], was no longer relied on in later decisions. The applicant did not dispute that the authorities had acted in the furtherance of a legitimate aim.
63.On the facts of the case the Court sees no reason to doubt that the measures in question pursued the legitimate aims stated by the Government.
[...].
74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the "necessity" for an interference, as regards both the legislative framework and the particular measure of implementation [...]. Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context [...]. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.
75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community (in the context of Article 6 para. 1 (art. 6-1), see the Bryan judgment cited above, p. 18, para. 47; in the context of Article 1 of Protocol No. 1 (P1-1), see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, para. 69; the Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117, pp. 65-66, paras. 74-75 and 78; the Poiss v. Austria judgment of 23 April 1987, Series A no. 117, p. 108, paras. 64-65, and p. 109, para. 68; the Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, para. 57, and p. 19, para. 63). It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.
76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her "home", a right which is pertinent to her and her children's personal security and well-being [...]). The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. [...].
80. In the instant case, an investigation was carried out by the inspector, who actually saw the land for herself and considered written representations submitted by the applicant and the District Council [...]. In conformity with government policy [...], the special needs of the applicant as a Gypsy following a traditional lifestyle were taken into account. The inspector and later the Secretary of State had regard to the shortage of Gypsy caravan sites in the area and weighed the applicant's interest in being allowed to continue living on her land in caravans against the general interest of conforming to planning policy[...]. They found the latter interest to have greater weight given the particular circumstances pertaining to the area in question. [...].
81. The applicant was offered the opportunity, first in February 1992 and again in January 1994, to apply for a pitch on the official caravan site situated about 700 metres from the land which she currently occupies ([...]. Evidence has been adduced which tends to show that the alternative accommodation available at this location was not as satisfactory as the dwelling which she had established in contravention of the legal requirements [...]. However, Article 8 (art. 8) does not necessarily go so far as to allow individuals' preferences as to their place of residence to override the general interest.
82. It is also true that subsequently, in her report of July 1995, the second inspector found that the applicant's caravans could have been adequately screened from view by planting hedges; this would have hidden them from view but, so the inspector concluded, would not have reduced their intrusion into open countryside in a way which national and local planning policy sought to prevent [...].
83. [...].
84. In the light of the foregoing, the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interest under Article 8 (art. 8), and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The latter authorities arrived at the contested decision after weighing in the balance the various competing interests in issue. [...]. Although facts were adduced arguing in favour of another outcome at national level, the Court is satisfied that the reasons relied on by the responsible planning authorities were relevant and sufficient, for the purposes of Article 8 (art. 8), to justify the resultant interference with the exercise by the applicant of her right to respect for her home. In particular, the means employed to achieve the legitimate aims pursued cannot be regarded as disproportionate. In sum, the Court does not find that in the present case the national authorities exceeded their margin of appreciation."

ECtHR (GC), judgment Hatton and Others v. the United Kingdom (36022/97) 8 July 2003 (on night-flights at Heathrow airport):

"98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance [...].
99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.
100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. [...]. 
123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation [...]. Rather, the normal rule applicable to general policy decisions [...] would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in Buckley, cited above[...]. Whilst the State is required to give due consideration to the particular interests, the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.
124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period [...]. The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8.
125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates [...]. However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review.
126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from Far-East destinations to London could arrive only by departing very late at night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including, inter alia, the addition of an overall maximum number of permitted aircraft movements (see paragraph 50 above) and reduction of the available quota count points (see paragraph 66 above).
127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (see paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure. [...].
129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."

ECtHR, judgement Dzemyuk v. Ukraine (42488/02), 4 September 2014 (construction of a cemetery in breach of environmental health regulations):

"82. As to the present case, the Court accepts that the applicant and his family may have been affected by the water pollution at issue. However, the Court must establish, in the absence of direct evidence of actual damage to the applicant’s health, whether the potential risks to the environment caused by the cemetery’s location established a close link with the applicant’s private life and home sufficient to affect his "quality of life" and to trigger the application of the requirements of Article 8 of the Convention [...].
83. The Court notes that the domestic environmental health and sanitary regulations clearly prohibited placing the cemetery in close proximity to residential buildings and water sources [...].. It appears that the nearest boundary of the cemetery is situated 38 metres away from the applicant’s house[...].. This cannot be regarded as a minor irregularity but as a rather serious breach of domestic regulations given that the actual distance is just over one tenth of the minimum distance permissible by those rules. Furthermore, the cemetery is a continuous source of possible health hazards and the potential damage caused by such is not easily reversible or preventable. Such environmental dangers have been acknowledged by the authorities on numerous occasions, including, by prohibiting the use of the illegal cemetery for burials and by the offer to resettle the applicant [...].). It further notes that the domestic authorities established that the construction of a cemetery at the said location placed the applicant at risk of contamination of the soil and of the drinking and irrigation water sources because of emanations from decomposing bodies like ptomaine [...].. The Court has particular regard to the fact that there was no centralised water supply in the Tatariv village and villagers used their own wells [...].. It also appears that the high level of E. coli found in the drinking water of the applicant’s well was far in excess of permitted levels and may have emanated from the cemetery [...]., although the technical reports came to no definitive or unanimous conclusion as to the true source of E. coli contamination [...].. In any event, the high level of E. coli, regardless of its origin, coupled with clear and blatant violation of environmental health safety regulations confirmed the existence of environmental risks, in particular, of serious water pollution, to which the applicant was exposed.
84. Under such circumstances, the Court concludes that the construction and use of the cemetery so close to the applicant’s house with the consequent impact on the environment and the applicant’s "quality of life" reached the minimum level required by Article 8 and constituted an interference with the applicant’s right to respect for his home and private and family life. It also considers that the interference, being potentially harmful, attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention. [...].
92. The Court notes that the Government have not disputed that the cemetery was built and used in breach of the domestic regulations [...]. It further appreciates the difficulties and possible costs in tackling environmental concerns associated with water pollution in mountainous regions. At the same time, it notes that the siting and use of the cemetery were illegal in a number of ways: environmental regulations were breached; the conclusions of the environmental authorities were disregarded; final and binding judicial decisions were never enforced and the health and environment dangers inherent in water pollution were not acted upon [...]. The Court finds that the interference with the applicant’s right to respect for his home and private and family life was not in accordance with the law" within the meaning of Article 8 of the Convention. There has consequently been a violation of that provision in the present case. The Court considers, in view of its findings of illegality of the authorities’ actions, that it is unnecessary to rule on the remaining aspects of the alleged breach of Article 8 of the Convention."

ECtHR, judgement Kapa and Others v. Poland (75031/13 and 3 others) 14 October 2021 (routing extremely heavy day and night motorway traffic via a road unequipped for such a purpose which ran through the middle of a town in very close vicinity to the applicants' home for two years during the construction of a motorway):

"153. The Court notes the finding of the domestic courts that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone beyond the statutory norms (see paragraph 88). In the light of the circumstances of the case, the adverse effects of the pollution (the noise, vibrations and exhaust fumes) emitted by the heavy traffic on Warszawska Street which affected the applicants’ home have attained the necessary minimum level to bring the applicants’ grievances within the scope of Article 8 of the Convention, taking into account their intensity, duration, physical and mental effects [...].
154. The Court observes that although the applicants complained that the heavy road traffic which had followed the opening of the Konin‑Stryków section of the A2 motorway had caused a nuisance, they did not argue against the national policy of road development or the local policy of commercial development of the area [...]. Incidentally, the implementation of these policies, as transposed into the local master plan, was to be accompanied by the construction of a ring road around Stryków [...],
155. The applicants complained instead that the problem in question could have been avoided if the authorities had been diligent in planning that section of the motorway [...]. Moreover, the consequent nuisance could have been minimised if the authorities had employed timely, adequate and sufficient mitigation and adaptation measures [...].
156. As to the first part of the complaint, the Court rejects the applicants’ argument that there was a pattern of bad planning as regards the sections of the A2 motorway, as there is no evidence to support that allegation.
157. The Court nevertheless observes that the administrative authorities, which were in charge of choosing the location and the technical specifications of the motorway, did not examine the objection about the location of the motorway’s temporary end point which had been lodged in 1996 by the mayor of Stryków [...]. The mayor had formulated a clear and detailed prediction as to the risk that ending the motorway at the point later known as the Stryków II junction without any alternative road connection would cause traffic on Warszawska Street which was too heavy and too burdensome [...].
158. The Court also takes note of the fact that all the environmental impact assessment reports and administrative decisions which were produced in the course of the impugned administrative proceedings, and which are in the Court’s possession, were only concerned with the motorway per se, and were completely silent as to the traffic rerouting via the N14 road [...].
159. Another important element in this context is that the authorities opted for that section of the motorway to be toll-free [...], even though that was clearly going to prompt the greater circulation of traffic on that road and on the N14, which was shorter and technically better than any alternative national or regional road in the vicinity [...].
160. Lastly, the Court accepts that Stryków residents were affected by not only the transit traffic, but also the movement of vehicles serving various warehouses and logistics centres [...]. However, no data are available to distinguish between these two types of traffic. The Court thus considers it reasonable to assume that the transit traffic constituted a significantly larger portion of the traffic in question, especially the traffic which circulated at night, that is, outside of the opening hours of the commercial establishments which developed in the Stryków area.
161. In the light of all these considerations, the Court cannot agree with the Government that the traffic on Warszawska Street was unpredictable [...]. The Court thus concludes that the authorities, who had been alerted to the potential problem in 1996, knowingly ignored it and continued developing the motorway project with total disregard for the well-being of Stryków residents.
162. The Court stresses that, for the purpose of this case, the peaceful enjoyment of Stryków residents’ homes was threatened and ultimately affected not by the development of the motorway as such, but rather the project rerouting the motorway’s traffic through the middle of their town. In that regard, the general interest in having the motorway developed or constructed in sections [...] must be distinguished from the general interest in having that particular section of the motorway end at the Stryków II junction, with the only option being to divert the motorway’s uncontrolled traffic down the unadapted Warszawska Street.
163. The Court accepts that minimising investment expenses is a valid general interest for any State budget. It also takes note of the information indicating that the ring road around Stryków could not be constructed owing to the shortage of funds [...]. However, the Court has serious doubts as to whether this is a sufficient counterbalancing factor.
164. The Court will now move on to the second part of the applicants’ complaint and examine whether the authorities reacted promptly and adequately to the problem of heavy traffic which started affecting Stryków residents after the opening of the section of the motorway on 26 July 2006.
165. The authorities, who, on the one hand, carried out their own monitoring, and other the other hand, were alerted to the problem by the population concerned [...], did not adopt a passive attitude.
166. The very first plan to mitigate the situation was presented in August 2006. The plan featured two options: the ring road, and the 1.7-km extension to what later became known as the Stryków I junction [...].
167. The implementation of that plan, however, was marked by serious complications and delays. As already explained, the ring road option was abandoned [...]. The second-best solution, that is, the opening of an extension to the motorway up to the new junction, took place only two and a half years later, on 22 December 2008 [...].
168. It appears that the delay in question was not attributable to the administrative proceedings (the environmental impact assessment having been delivered in 2003, and the permits having been granted in 2006), but rather the works [...].
169. Extending the motorway to the Stryków I junction offered a direct connection to the A1 motorway and effectively reduced the traffic on the N14 road to an acceptable level [...].
170. While awaiting the above-described long-term solution, the authorities made serious, albeit hasty, attempts to reorganise the traffic by installing custom-made signs indicating that drivers should make possible detours via nearby national and regional roads [...]. To judge the effects of that measure, the Court can only rely on the expert report of 30 November 2010, which appears to contradict itself, as well as on the parties’ submissions. It is thus the Court’s understanding that the measure which was implemented in December 2006, even though it had some positive effect, did not eliminate the heavy and continuous traffic from a significant number of trucks [...].
171. In October 2006 the authorities also took the adaptation measure of renovating the surface of Warszawska Street [...]. That apparently did not bring about any positive change [...]. It appears that no other adaptation measures (like anti-noise screens) could be taken in Stryków.
172. The Court observes that the authorities faced a difficult task of mitigating the problem of very heavy traffic resulting from the rerouting of the A2 motorway down Warszawska Street. They also had a very limited choice of possible adaptation measures. The Court therefore accepts that the authorities made considerable efforts to respond to the problem. This, however, does not change the fact that these efforts remained largely inconsequential, because the combination of the A2 motorway and the N14 road was, for many reasons, the preferred route for drivers. As a result, the State put vehicle users in a privileged position compared with the residents affected by the traffic.
173. Even though the civil proceedings through which the applicants tried to seek ex post facto compensation for the nuisance suffered cannot be said to have been marked by unfairness, all the foregoing considerations are sufficient to enable the Court to conclude that a fair balance was not struck in the present case.
174. In sum, the rerouting of heavy traffic via the N14 road, a road which was unequipped for that purpose and very near to the applicants’ homes, and the lack of a timely and adequate response by the domestic authorities to the problem affecting the inhabitants of Warszawska Street, enables the Court to conclude that the applicants’ right to the peaceful enjoyment of their homes was breached in a way which affected their rights protected by Article 8.
175. There has accordingly been a violation of Article 8 of the Convention."

IV. Spatial Planning, Administrative Procedure and Participation

1. Case Law of the ECtHR on Basic Procedural Requirements

2. Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons

3. Articles 6 and 7 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)

4. The CoE handbook "The administration and you"

5. Guidelines of the Committee of Ministers for civil participation in political decision making (CM(2017)83-final) of 27 September 2017

6. The pan-European general principles on transnational mutual assistance and participation in spatial planning procedures

 1. Case Law of the ECtHR on Basic Procedural Requirements

ECtHR, judgement Buckley v. United Kingdom (20348/92) 25 September 1996 (on a refusal to grant a permanent planning permission for the residential use of three caravans):

"76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her "home", a right which is pertinent to her and her children's personal security and well-being [...]). The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 (art. 8) contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (art. 8) [...]."

ECtHR (GC), judgment Hatton and Others v. the United Kingdom (36022/97) 8 July 2003 (on night-flights at Heathrow airport):

"99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.
128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the authorities have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme had thus been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN [...], and were thus particularly well-placed to make representations.
129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."

ECtHR, decision Eckenbrecht and Ruhmer vs. Germany (25330/10), 10 June 2014 (on planning proceedings for expansion and reconstruction of the Leipzig/Halle airport):

"36. The Court reiterates that whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on the State, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8. It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process and the procedural safeguards available. A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others, cited above, § 128; Dubetska and Others v. Ukraine, no. 30499/03, § 143, 10 February 2011 and Grimkovskaya v. Ukraine, no. 38182/03, § 67, 21 July 2011). Furthermore, the public should have access to the findings (see Taşkın and Others v. Turkey (dec.), no. 46117/99, § 119, ECHR 2004‑X).
37. The Court notes at the outset that the planning authorities were well aware that the envisaged economic development implied serious disturbances for residents.
38. It observes that the approval decisions complied with all requirements of the domestic law: in its judgment of 9 November 2006 the Federal Administrative Court quashed the (original) appeal decision in the parts relating to the balancing of interests and required the authorities to take a formal decision on the regulation of night flights.
39. The Court notes in this context that when scrutinizing the procedural safeguards that were available to those whose rights were at stake, it should not limit itself to scrutinising exclusively the supplementary plan approval decision of 2007, as only by examining the supplementary decision in the light of the 2004 approval decision the Court may attain a full overview of the safeguards at hand.
40. Before the supplementary plan approval decision was issued the local residents had again the possibility to advance their views and objections in order not to become precluded from future judicial review. Views and objections were only admitted and taken note of if they related to the balancing that had to be amended by these supplementary proceedings.
41. The supplementary approval decision based its balancing of the public interest in economic and regional development with the private interests in privacy on the findings of the expert reports on noise pollution ordered in 2003. The planning authority had originally ordered expert reports on the ex ante situation and on future noise disturbances in order to have a sound factual basis for its decision. These reports and the plans based on these findings were made public and the residents and interested NGOs were invited to comment in 2004. According to the findings of the reports the planning commission set out several noise protection zones ranging from zones which would be considered no longer suitable for occupational purposes due to noise to zones where passive noise protection measures would be provided for by the airport company. The applicant’s homes both lay within the zone where passive noise protection would be provided for.
42. In summary, the Court observes that the residents affected by the planning had the right to participate actively in the proceedings by advancing their views. The expert reports on noise impacts were rendered public as were the planning materials. The planning authority defined areas where owners had to be compensated as the premises were considered to have become unhealthy for habitation, and areas where passive noise protection was provided for. Lastly, there was access to judicial review.
43. The Court recalls that the planning authority in 2007 decided solely on the question whether it was possible to further restrict night time flights for ordinary freight or passenger flights while still ensuring that the economic development aims for the regions by attracting global freight operators remained feasible. Further reducing night flights was considered of particular importance since the residents already had to tolerate night disturbances due to the flights for express freight and their interest to be spared additional flights at night was taken into special consideration. A decision to allow unrestricted night time flights would have required a particular justification.
44. The planning authorities therefore carefully lay out which type of flights could be further restricted (passenger and ordinary freight flights) and which could not without endangering the legitimate public purpose pursued by the airport reconstruction. Regarding express freight the authority explained that only rarely a whole flight would consist entirely of express freight, but most freight flights would be mixed. However, it imposed a supervisory duty on the airport for the future to ensure that the overwhelming part of night goods would consist of express goods. The Court is not in a position to substitute the authority’s balancing decision with its own.
45. In view of the fact that the German courts took into account all relevant factors and balanced them in a reasonable manner, the impugned decisions cannot be held to have overstepped the margin of appreciation as regards Article 8. Accordingly, the Court finds that the applicants’ complaints under Article 8 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention."

2. Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons

"The Committee of Ministers, [...].
Considering that, in an increasing number of fields, administrative authorities are called upon to take decisions which affect in varying ways a large number of persons, especially in the fields of major installations, industrial plant and spatial planning;
Considering that it is desirable that common principles be laid down in respect of such decisions in all member states so as to ensure compatibility between the protection of a large number of persons and the requirements of efficient administration; [...].
Having regard to the general principles laid down in Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities as well as to the relevant principles included in Recommendation No. R (80)2 concerning the exercise of discretionary powers by administrative authorities;
Considering that these principles should be adapted and supplemented in order to ensure in a fair and effective manner the protection of a large number of persons, including, where appropriate, persons concerned by certain international effects of decisions,
Recommends the governments of member states to be guided in their law and administrative practice as well as in their mutual relations by the principles set out in the appendix to this recommendation; [...].

See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):

"2. It has been found that an increasing number of actions by public authorities are of such complexity or scale as simultaneously to affect, with varying intensity, a large number of persons. Their impact may even be felt in the territory of a neighbouring State. Such actions of public authorities may not only affect in a concrete manner the rights, liberties and interests of a large number of persons but they may also attract the attention and anxiety of a large number of other persons whose interests could be affected and cause them to want to influence the proposed action. In some circumstances the interests of the latter persons are so important that they ought to be given protection in the administrative procedure.
The factors now mentioned have a special bearing on the organisation of the administrative procedure and call for adequate solutions.
Two basic questions arise.
How should the protection of a large number of persons be organised so as to remain compatible with the requirements of efficient administration? To what extent, under which conditions and how should persons whose rights, liberties or interests are liable to be affected by an administrative act in the territory of a neighbouring State, have the possibility to take part in its making and to have it reviewed by a control organ?
3. [...].
4. In spite of the differences between the legal and administrative systems of the member States, it was possible to discover a large measure of agreement concerning the fundamental principles which should guide the rules on administrative procedures concerning a large number of persons and to recommend their extension. The task was basically one of developing and adapting the principles set out in Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities and, subsidiarily, in Recommendation No. R (80)2 concerning the exercise of discretionary power by administrative authorities."

 Scope and definitions following the Appendix to Recommendation No. R (87)16:

"The present recommendation applies to the protection of the rights, liberties and interests of persons in relation to non-normative administrative decisions (administrative acts) which concern a large number of persons, more specifically:
a. a large number of persons to whom the administrative act is addressed, hereafter referred to as persons of the first category;
b. a large number of persons whose individual rights, liberties or interests are liable to be affected by the administrative act even though it is not addressed to them, hereafter referred to as persons of the second category;
c. a large number of persons who, according to national law, have the right to claim a specific collective interest that is liable to be affected by the administrative act, hereafter referred to as persons of the third category."

See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):

 "10. The Recommendation's scope is not limited to certain areas of administrative activity. It is neither desirable nor feasible to specify in such international instruments, as is often the case under national law, the fields in which participation procedures must be set up as well as any levels and criteria of magnitude determining at what stage those procedures must be used. It is true that spatial planning, the execution of major installations and the protection of the environment constitute the most obvious fields of application. The Recommendation is however designed to encompass various other fields and to be applicable to future areas of administrative action which are not foreseeable yet.

Structure of the Appendix to Recommendation No. R (87)16: Section I lays down principles applicable to the taking and the control of administrative acts which concern a large number of persons on the national territory. Section II states various additional principles for the protection of rights and interests affected outside the national territory.

The procedurals rules foreseen in Section I deal with instruments to permitting an effective consultation with all persons concerned by information, the need to choose representatives, the obligation to take into account facts, arguments and evidence submitted by the persons concerned during the participation procedure, the final notification of the act in question, and judicial control.

3. Articles 6 and 7 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, Liechtenstein, Monaco, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby also concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.

"Article 6 - Public Participation in Decisions on Specific Activities
1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and
(c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.
2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure, including, as and when this information can be provided:
(i) The commencement of the procedure;
(ii) The opportunities for the public to participate;
(iii) The time and venue of any envisaged public hearing;
(iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;
(v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and
(vi) An indication of what environmental information relevant to the proposed activity is available; and
(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.
3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their application before applying for a permit.
6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:
(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the environment;
(c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;
(d) A non-technical summary of the above;
(e) An outline of the main alternatives studied by the applicant; and
(f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.
7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.
8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.
9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.
10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.
11. Each Party shall, within the framework of its national law, apply, to the extent feasible and appropriate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment.

Article 7 - Public Participation Concerning Plans, Programmes and Policies Relating to the Environment

Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment."

See for the definition of "public" and "public concerned":

"Article 2 - Definitions
For the purpose of this Convention
1. [...].
4. "The public" means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;
5. "The public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."

4. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (2nd edition 2018), pp. 30 f.:

"Principle 9 – Participation
Everyone shall have the opportunity to participate in the preparation and implementation of administrative decisions by public authorities which affect his or her rights or interests..
[...]
Commentary
Participation by individuals (as users of public services) in the preparation and implementation of administrative decisions which affect them is a means of bringing the public closer to the public authority. Public participation should be encouraged where feasible to ensure the public interest is taken into account, without fostering corporatism or excessively slowing down the decision making. Only urgent action would be a legitimate reason for public authorities not to respect the principle of participation.
Public participation can be achieved by members of the public participating in ad hoc joint committees or in municipal committees or boards. Another possible method is the organisation of annual meetings involving representatives of service providers and users to meet and discuss the preparation or implementation of administrative decisions based on an agreed agenda.
Effective public participation can entail the involvement of civil society given its work with various sections of the public and its experience of daily life on the ground. Civil society can help public authorities better understand and meet the expectations of the public when providing social, cultural or educational services, for example in relation to: kindergartens, school meals, school transport, libraries, the environment, assistance for the elderly, and health and assistance for children in difficulty at school.
When a public authority proposes to take a non-regulatory decision that may affect the rights and interests of an indeterminate number or large numbers of people,particularly at local level (for example on large construction projects, change of land use, health or educational policies), it should set out procedures allowing for public participation in the decision-making process. Such participation can take the form of written observations, hearings, representation on an advisory body of the competent authority, consultations and/or public enquiries. Whichever form ofparticipation is chosen, it is important that the public is clearly informed of the proposals in question and given the opportunity to express their views fully."

CoE (ed.), The administration and you (2nd edition 2018), pp. 31 f.:

"Principle 10 – Right to be heard
Before a public authority takes an administrative decision affecting the rights or interests of an individual, the person concerned shall be given the opportunity to express his or her views and submit information and arguments to the public authority.
[...]
Commentary
The right to be heard is a key principle of good governance in a democratic state. For this, access to official information is important to enable individuals to make relevant and effective submissions in relation to proposed administrative decisions that will or may affect their rights or interests [...]. Procedures and what matters need to be considered will depend on whether the administrative decision concerns individual or collective interests.
[...].
To assist those who wish to make submissions, the public authority should provide full disclosure of the facts, arguments and evidence, as well as the legal basis, on which it intends to make its decision. The submissions of other parties should also be made publicly available. Individuals should be allowed to make submissions on more than one occasion during the course of the administrative procedure, particularly where the procedure is lengthy and new elements come to light. Individuals should also have the right to respond to submissions made by the public authority or other parties.
[...].
In many cases decisions of public authorities will concern a large number of persons, often within the same locality (for example in the context of major installations, industrial plants, urban and rural planning). Persons residing in neighbouring or other states may also be affected. Indeed, local authorities in border regions are increasingly undertaking public works of a transfrontier nature. Recommendation No. R (87) 16 on administrative procedures affecting a large number of persons balances the requirements of good and efficient administration, on the one hand, with the fair and effective protection of a large number of persons on the other hand, including, where appropriate, persons affected by the international effects of administrative acts. The right to be heard is an important principle in this context. It is important that systems are put in place to facilitate participation in relevant administrative procedures, such as public consultations, public hearings, and the setting up of advisory bodies. Notification of administrative procedures may be by publication of public notices. Where administrative decisions concern people living and working in adjoining border areas of another state or jurisdiction, public authorities should take steps to allow these people to also participate effectively in the decisionmaking process, possibly in co-ordination with relevant public authorities of the other state or jurisdiction."

5. Guidelines of the Committee of Ministers for civil participation in political decision making (CM(2017)83-final) of 27 September 2017

There seems to be no Explanatory memorandum to these guidelines.

6. The pan-European general principles on transnational mutual assistance and participation in spatial planning procedures

For the pan-European general principles on transnational mutual assistance and participation in spatial planning procedures click here

V. Spatial Planning and Judicial Review

1. Judicial Review and the Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons

2. Article 9 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)

1. Judicial Review and the Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons

"Section I
Administrative Procedure and control
I. [...].
VII.
The administrative act should be subject to control by a court or other independent body. Such control does not exclude the possibility of a preliminary control by an administrative authority.
When the control procedure involves a large number of individuals, the court or other control body may, in accordance with fundamental principles and having due regard to the rights and interests of the parties, take various steps to rationalise the procedure, such as requiring participants with common interests to choose one or more common representatives, hearing and deciding test appeals and making notification by public announcement."

See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):

 "22. In the matter of control, there is a great diversity between national laws in every respect : locus standi, scope of the control, whether or not an appeal has a suspensive effect, power of the courts to give instructions to the administration. In spite of a general trend towards fuller supervision by the courts, harmonisation of the law on this point is particularly difficult. Principle VII reflects this state of affairs.
Firstly, it guarantees the existence of a system of control by a court or other independent body but without indicating either its scope or its accessibility, which are both matters regulated exclusively by domestic law.
Secondly, it is designed to facilitate the efficient conduct of proceedings within a reasonable time by suggesting certain procedural changes made desirable by the large number of participants. The changes suggested are intended only as examples, as any procedural reform should take account of the particular features of each state’s judicial system and traditions. Such changes should be introduced in conformity with the fundamental principles of procedure deriving from the constitution or from texts ranking above the law.
23. In this respect, it is recalled that the principles set out in the appendix to the recommendation, and in particular Principle VII, are addressed to governments – with a view to their proposing any necessary legislative reforms – rather than to courts. It may be noted in this regard that, in some states, courts already have extensive powers to rationalise proceedings along the lines suggested, while such rationalisation is limited in scale or even non-existent in other states and would need a legislative basis."

2. Article 9 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby also concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.

"Article 9 - Access to Justice
1. [...].
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest
or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of preliminary review procedure before an administrative authority and shall
not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4. In addition [...] the procedures referred to in paragraphs [...] 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice."

VI. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review

If a decision to adopt an 'act of spatial planning' is taken in the form of a regulation or a bylaw (municipal statute) the pan-European general principles on administrative rules and administrative rulemaking (for theses principles click here) may apply subsidiarily to these decisions. Furthermore, the decision to adopt an 'act of spatial planning' may meet the criteria

• of an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal")
  

and

• of an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal")

and

• of a 'non-regulatory decision' ("which may be individual or otherwise. Individual decisions are those addressed solely to one or more individuals.") in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

and

• of an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").

Thus, the basic principles enshrined in these recommendations may directly apply to 'spatial planning decisions' meeting these criteria on a subsidiary basis. This concerns the the pan-Euopran general principles on

• discretion (for these principles click here),

• fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here), and

• judicial review (for these principles click here).