A not entitled to complain of local plan

Case no. BS-3521/2021-HJR
Judgment delivered on 1 June 2023

A
vs.
Planklagenævnet (Planning Appeals Board)

On 20 December 2017, the Municipality of Frederikshavn adopted a local plan and a municipal development plan comprising the construction of a new 1,200 square metre grocery store outside of the city centre in X City.

A complained of the authorities’ decisions to adopt the local plan and municipal development plan, but the Appeals Board refused to hear her complaint as it found that she was not entitled to complain.

The case concerned the issue of whether the Appeals Board’s decision was in accordance with the rules of the Danish Planning Act governing the right of appeal, read with the Aarhus Convention of 25 May 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

A, who lived at a direct distance of 2,000 metres from the local plan area, was the CEO and sole shareholder of a private limited company owning several residential and commercial properties in X City. The properties were located at a direct distance of 1,700, 1,500 and 760 metres from the plan area. The closest property was leased to a grocery store. A submitted, among other things, that the plans affected the retailers in the city centre, and that residents and business owners in the city centre therefore had a right of appeal. A also submitted that because she participated actively in the process preceding the local authorities’ adoption of the plans, she could be considered to be a member of the “public concerned”, which meant that she had a right of appeal under the Aarhus Convention.

The Supreme Court stated that A, who had filed the complaint as a private individual, was not a landowner, resident or business owner in the local plan area covered by the local plan and municipal development plan. Accordingly, the issue of whether she was entitled to complain of the decisions according to Section 59(1) of the Planning Act, read with Article 9(2) of the Aarhus Convention, should be decided based on an overall assessment of the specific circumstances of the case.

The Supreme Court held that A had no legitimate interest in complaining of the local authorities’ decisions to adopt the local plan and municipal development plan.

The Supreme Court held that this does not imply that A did not have a “sufficient interest” under the Aarhus Convention, and that it was therefore not relevant to the issue of her right of appeal under Section 59(1) of the Planning Act whether she was to be regarded as a member of the “public concerned” under the Aarhus Convention.

The High Court had reached the same conclusion.