Aarhus Convention Compliance Committee confirms that access to courts to challenge wind turbine permits cannot be dependent only on distance

Findings and recommendations with regard to communication ACCC/C/2013/81 concerning compliance with Sweden (adopted on 18 November 2016)

The Aarhus Convention Compliance Committee has ruled that access to courts to challenge wind turbine permits cannot be dependent only on the distance from the complainer’s property, but fails to call out Sweden for non-compliance with the Aarhus Convention. Analysis by Linli-Sophie Pan-Van de Meulebroeke

Following a communication alleging that Sweden had failed to comply with its obligations under Article 9(3) of the Aarhus Convention in relation to building permits for wind turbines, the Aarhus Convention Compliance Committee has provided guidance on the considerations to be taken into account when assessing whether an individual qualifies as a party concerned to challenge the permits.

Under the jurisprudence of the Supreme Administrative Court of Sweden, “such decisions are deemed to concern – in addition to the applicant – owners of the properties bordering directly on the property that the building permit applies to and, in addition, owners of properties in close neighbourhood that are particularly affected on account of the nature and scope of the measure covered by the building permit, natural conditions at site, etc.”. The Committee considered that the criteria were not as such in breach of Article 9(3) of the Convention.

The central question is whether the Swedish reviewing bodies applied the criteria in a way that is in compliance with Article 9(3) of the Convention. The Committee observed that the two decisions at issue rejected the communicant’s appeal primarily on the basis that his property was located more than 1,5 km from the closest wind turbines and was therefore not considered to be affected.

Despite the flexibility allowed by Article 9(3), the Committee considered that the reviewing bodies, when examining the criteria for standing, had to take into account all considerations relevant to those criteria on a case-by-case basis. In the context of wind turbines, potential impact on individuals such as noise, vibration, shadow flicker and safety considerations are of importance. Damage to the environment at large are of relevance as well. Therefore, according to the Committee, to exclude standing by referring only to distance would not comply with Article 9(3) of the Convention.

While the decisions did not demonstrate that any factor other than distance was taken into account, the Committee judged, in light of the circumstances of the case, that there was no conclusive evidence that the Swedish reviewing bodies based their decision exclusively on distance. It therefore refused to make a finding of non-compliance with the requirements of the Article 9(3) of the Convention.

Such conclusion is disappointing and surprising given that the Committee recognised expressly the lack of evidence on whether other relevant factors had been taken into consideration. Since it is clear that no other factor than distance was mentioned in the passages of the decisions, the Committee’s findings seem to put an excessively high burden on the communicant when it comes to prove that the reviewing bodies only took distance into account.