CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 mai 2001

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KLEYN Application no. 39651/98: METTLER TOLEDO B.V. et al. Application no. 43147/98: Markus A.J.E. RAYMAKERS & Pauline W.N. RAYMAKERS Application no. 46664/99: VERENIGING LANDELIJK OVERLEG BETUWEROUTE Application no. 61707/00: Aart VAN HELDEN against   the Netherlands   The European Court of Human Rights (First Section), sitting on 3 May 2001 as a Chamber composed of   Mrs   E. Palm , President ,   Mrs   W. Thomassen ,   Mr   Gaukur Jörundsson ,   Mr   R. Türmen ,   Mr   C. Bîrsan ,   Mr   J. Casadevall ,   Mr   R. Maruste , judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above applications introduced with the European Commission of Human Rights on 8, 28, 29 and 31 July 1997 and 16 March 1997 and with the Court on 9 August 2000 and registered on 18 December 1997, 14 January 1998, 4 February 1998, 28 August 1998, 9 March 1999 and 12 October 2000, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications introduced with the Commission was transferred to the Court, Having deliberated, decides as follows: THE FACTS The present case concerns the planning and construction of a new railroad, the so-called “ Betuweroute ” railway, which is to run across the entire width of the Netherlands from Rotterdam to the border with Germany. It is currently under construction. A.   The applicants Application no. 39032/97   Maatschap Smits is a partnership consisting of Mr B.G. Smits and his father Mr P.G. Smits. They are dairy farmers. Their farm and the house inhabited by Mr P.G. Smits are located in the municipality of Sliedrecht, at a distance of 20 meters from the projected railway track. The house is due to be expropriated and demolished, leaving the farm buildings standing. The house is built onto the farm buildings.   Application no. 39343/98   Mr A.A. Kleyn is a managing director of the limited liability company (besloten vennootschap met beperkte aansprakelijkheid) B.V. Kleijn Financierings- en Leasemaatschappij and of the limited liability company Exploitatiemaatschappij De Zeiving B.V.. He is also part owner of the restaurant “De Goudreinet”. He lives above this restaurant, which is located directly on or adjacent to the projected railway track.     Application no. 39651/98   Mettler Toledo B.V. is a limited liability company. Its business is supplying weighing instruments. Its premises are located in Tiel, at a distance of approximately 50 meters of the projected railway track. It owns a device for calibrating weighing instruments which is accurate to within one-millionth of a gram. This is the only such device in private hands in the Netherlands and it is highly sensitive to vibration.   Van Helden Reclame-Artikelen B.V. is a limited liability company.   Its business is the manufacture, by screen printing, of advertising materials and their sale. Its premises are located in Tiel, close to the projected railway track. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, live next to the company’s business premises.   Grasshopper Reclame is a registered partnership (vennootschap onder firma) established under Netherlands law. Its business is printing advertising materials.   Its premises are located in Tiel, close to the projected railway track. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee-van Frankfoort, live above the company’s business premises.   M.C. Gerritse B.V. is a limited liability company. Its business is the sale of lorries and motor cars. Its premises are located in Tiel, close to the projected railway track.   Texshop B.V. is a limited liability company. Its business is the sale of casual clothing.   Its premises are located in Tiel, close to the projected railway track.   Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel, close to the projected railway track.   The Chamber of Commerce and Industry for the province of South-west Gelderland ( Kamer van Koophandel en Fabrieken voor Zuid-West Gelderland ) has its offices in Tiel, close to the projected railway track.   Maasglas B.V. is a limited liability company. Its premises are in Tiel, at approximately one kilometre from the projected railway track. Its business is the manufacture and sale of sheet glass for the building industry, agriculture, the motor industry and other commercial applications. The production of sheet glass involves floating molten glass on the surface of a bath of molten tin, a process that is highly sensitive to vibration.   Mr C.M. van Burk operates a petrol station on the A15 motorway near Meeteren, which will have to be moved to another location. This new location is close to the projected railway track.   Kuwait Petroleum (Nederland) B.V. is a limited liability company.   It owns the petrol station operated by Mr van Burk.   Sterk Technisch Adviesbureau B.V. is a firm of technical consultants whose business is the development of cost-saving devices for commercial vehicles and industry.   Its premises are located in Spijk and they will have to be relocated if the railway is built.   The B.V. Kleijn Financierings- en Leasemaatschappij and the Exploitatiemaatschappij De Zeiving B.V. are both a limited liability company and - together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms   C.J.   Kleijn - are joint owners of a number of plots along the A15 motorway and further are part owners of the restaurant “De Goudreinet” that is located on one of the plots.   Application no. 43147/98   Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg are resident in Kerk-Avezaath. Their home is located close to the projected railway track.   Application no. 46664/99   The “Vereniging Landelijk Overleg Betuweroute” (Association for nationwide consultation on the Betuweroute) is a private association based in Kerk-Avezaath. It is applying on its own capacity as well as on behalf of its members. It further represents a number of natural persons in the proceedings before the Court. The names of its members as well as the persons it represents in the proceedings before the Court are appended to this decision.   Application no. 61707/00   Mr A. van Helden lives in Tiel where he owns three plots that will be affected by the construction of the Betuweroute railway. He is also one of the applicants in application no. 39651/98.   All corporate applicants and the applicant association Vereniging Landelijk Overleg Betuweroute have legal personality under Netherlands law. All applicants being natural persons are Netherlands nationals.   With the exception of the applicants in application Nos. 39032/97 and 46664/99, all applicants are represented in the proceedings before the Court by Mr K.F. Leenhouts, a lawyer practising in Tiel. B.   The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.   1.   Factual background   The territory of the Netherlands includes the estuaries of the rivers Rhine, Maas and Schelde, all of which join the North Sea at or near the town of Rotterdam.   These rivers have long been used for the transport of merchandise to and from a large part of the North western and Central European hinterland, and in particular the vast industrial area situated along the river Ruhr in Germany. Over the centuries this geographical situation has allowed the Netherlands to become one of Europe’s major transport hubs, with the harbour of Rotterdam and Schiphol airport near Amsterdam having developed into important transit points for goods.   In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of Central and Eastern European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic.   Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable. It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks.   In the early 1990s the Government decided on a policy of maintaining and further improving the competitiveness of the port of Rotterdam as Europe’s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseille and London.   At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment.   An existing railway, opened in 1879 and known as the “Iron Rhine” ( IJzeren Rijn ), runs from the Belgian port of Antwerp to the German city of Mönchengladbach. It crosses Netherlands territory near Roermond. About half of its length is single-track, and only some 60 % of it is electrified.   It is at present disused. Initiatives of the Belgian Government aimed at modernising it and reviving it as a main transport artery have so far met with a refusal of the Netherlands Government on the ground that it runs through the nature reserve “Meinweg”, east of Roermond, an area protected under EC Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the “habitat directive”). Negotiations between the two Governments about re-routing this part of the Iron Rhine or, in the alternative, connecting to the Dutch railway system elsewhere are ongoing.   2.   The planning process   A.   The preparatory stages   An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal) - known as the “Betuwe line” ( Betuwelijn ) - joins the city of Rotterdam to the town of Elst.   It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a Government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways ( Nederlandse Spoorwegen , “NS”) and published in 1991 concluded that the environmental impact would be unacceptable and the capacity of such a railway would be insufficient. This led the Government to reject that idea. Instead, the Government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “ Betuweroute ”, along the motorway A15. The NS was required to prepare an environmental impact report ( milieu-effectrapportage , “MER”).   On 16 April 1992 the Minister of Transport and Communications ( Verkeer en Waterstaat ) and the Minister of Housing, Planning and Environment Management ( Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer ) together presented the first draft of the Outline Planning Decision ( Planologische Kernbeslissing ), later to become known as “Outline Planning Decision part 1”. The environmental impact report prepared by the NS was appended to this document. In accordance with the then Article 2a of the Town and Country Planning Act ( Wet op de ruimtelijke ordening ) it was laid open for public inspection, notice of its publication being given through the Official Bulletin ( Staatscourant ) and the media. Anyone interested could then make known his or her views. The time-limit for so doing was 27 July 1992.   More than 1,800 reactions were received.   On 31 August 1992 the Netherlands Minister of Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increasing co-operation in the matter of cross-border railway communication.   The agreement provided, subject to the conclusion of procedures prescribed by national law, for inter alia the building of a new railway from Rotterdam via Zevenaar to the German border.   There were to be two border crossings, one at Oldenzaal/Bad Bentheim and the other at Venlo/Kaldenkirchen.   The agreement also provided for corresponding measures to be taken on the German side and for a time frame.   On 18 April 1993 the Government published a document entitled “ Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute ” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, i.e. provinces, municipalities, regional surface water boards ( waterschappen ). Advice obtained from the Netherlands-German Planning Board ( Nederlands-Duitse Commissie voor de Ruimtelijke Ordening ), the Environmental Impact Reports Board ( Commissie milieu-effectrapportage ), the Planning Advisory Board ( Raad van Advies voor de Ruimtelijke Ordening ) and the Traffic Infrastructure Consultation Body ( Overlegorgaan Verkeersinfrastructuur ) was also included in this document, which became known as Outline Planning Decision part 2.   On 18 May 1993 the Government published its views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval.   This document became known as Outline Planning Decision part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision part 3 back to the Government with its comments.   The Government made certain modifications. The resulting document, which became known as Outline Planning Decision part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval. Outline Planning Decision part 3A was approved by the Lower House of Parliament on 22 December 1993. Subsequently, on 12 April 1994, Outline Planning Decision part 3A was approved by the Upper House of Parliament.   It became known thereafter as Outline Planning Decision part 4.   B.   Outline Planning Decision part 4   Outline Planning Decision part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the Government, and giving reasons for the choices made. It was stated that the Netherlands main ports, Rotterdam and Schiphol Airport, now served most of the continent of Europe and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone. Moreover, much of the European hinterland could not be reached by water.   Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of Eastern Europe railway infrastructure was better developed and in a better state of repair than the roads.   Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads. Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community (EEC) also provided for the development of new railways.   The explanatory memorandum contained summaries of studies - additional to that undertaken by the NS in 1991 - that had been commissioned by the Government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both of these studies concluded that the Betuweroute would be profitable. They were scrutinised by the Central Planning Office ( Centraal Planbureau ). The results of this appraisal were also rendered in summary form. The Government considered that although the Central Planning Office was rather more guarded in its conclusions, these too justified finding that the project was viable.   Also alternatives were taken into consideration. These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany (the “ Brabantroute ”), currently used mainly for passenger traffic, and making it more suitable for the transport of goods.   This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems.   Alternatives not involving railways, which had been suggested after Outline Planning Decision part 1 had been laid open for public inspection, were discarded in view of the need to connect to existing railway infrastructure in the remainder of Europe. The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were under further development.   Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level.   These were considered, but rejected as the cost would be prohibitive. A choice was made for a traditional construction consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being countenanced only for locations where such was indicated by considerations of safety or environmental impact. Similarly, a choice was made for using conventional rather than innovative technology.   Outline Planning Decision part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal bandwidth of one hundred meters. Within this bandwidth limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it. The actual route was set out in sketch plans, reasons for the choices made and for the rejection of alternatives being given. Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance ( Besluit geluidhinder spoorwegen )) the maximum permissible noise level was 60 decibel ampère (dB(A)) on the outside walls of residential buildings, a “preferential noise level” of 57 dB(A) would be applied in anticipation of stricter standards which were expected to enter into force in the year 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens. Exceptionally, noise levels of up to 70 dB(A) might be tolerated at specific locations, but even there they were not to exceed 37 dB(A) inside residential buildings with the windows closed and ventilation apertures open. Although there might be a accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible by screening and other measures to reduce the combined noise levels to 60 dB(A).   Some 150 residential buildings were found to be located within 50 meters of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function. Studies also had been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels.   The danger that might be caused by the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas.   The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the Routing Decision ( Tracébesluit ).   There had been an audit into the costs of the project as proposed by the Government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138 million Netherlands guilders (NLG). Of this sum a portion of NLG 1,975 million would be paid out of the State budget. The remaining NLG 5,163 million would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750 million occasioned by changes imposed by the Lower House of Parliament and NLG 375 million required to meet objections and special requests made by individuals and local authorities.   A new Government took office in August 1994, which in pursuance to agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee (the “Hermans Committee”), the new Government decided that the plan should go ahead. Its views were made public in a letter sent by the Minister of Transport and Communications and the Minister of Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the Government’s views.   C.   The Routing Decision (Tracébesluit)   A preliminary draft of the Routing Decision was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels. Some 5,500 reactions were received from individuals and non-governmental organisations, among them the applicant association Vereniging Landelijk Overleg Betuweroute, in addition to reactions from local government bodies. These led to modifications, which were incorporated in the draft Routing Decision.   The draft Routing Decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local government bodies. Changes were considered, and eventually incorporated in the final Routing Decision, insofar as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise reduction measures additional to those foreseen in Outline Planning Decision part 4.   The Routing Decision was finalised on 26 November 1996 by the Minister of Transport and Communications in agreement with the Minister of Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations not concerned in the present case for which further planning was required.   The Routing Decision comprises 24 articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made.   A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated. It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary without regard to the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, further measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision part 4. Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas ( stiltegebieden , “silence areas”). The residential function of residential buildings where the noise levels would be excessive would have to be terminated. A detailed report, setting out the noise levels for each municipality, was appended to the Routing Decision.   Compensating measures for the preservation of the environment and the existing landscape were to include, amongst other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation. Special measures were also envisaged for the protection of any known archaeological sites.   Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas.   The need, at some locations, for cleaning polluted soil was noted.   Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway’s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths   – safety was the main consideration. Changes to existing ditches and waterways were unavoidable.   Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date.   3.   Appeals against Outline Planning Decision part 3a and the Routing Decision   A.   The appeal against Outline Planning Decision part 3A   A total of 173 appeals against Outline Planning Decision part 3A were lodged with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ), many jointly by a plurality of appellants. The appellants included a large number of individuals, non-governmental organisations and private companies, several Dutch local government bodies and two German municipalities (Voerde and Dinslaken). Of the applicants in the present case, Kuwait Petroleum (Nederland) B.V. (no. 39651/98) and M. Witvliet (no. 46664/99) are not mentioned as appellants in the resulting decision.   With the exception of the applicants Mr and Mrs Raymakers (no.   43147/98), who only raised objections of a general nature to Outline Planning Decision part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway insofar as their respective interests would be affected.   A total of sixteen hearings were held before the Administrative Jurisdiction Division in July, August and September 1996.     On 31 January 1997 the Administrative Jurisdiction Division handed down its decision. It rejected all the complaints of a general nature. As to the specific complaints, it noted that Outline Planning Decision part 3A was not yet final as regards the eventual route of the railway.   It therefore limited the scope of its review, for each separate location, to the question whether the Government could reasonably have set the bandwidth as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the bandwidth specified or that, in view of possible measures to be taken, the interests of affected appellants had been adequately taken into account. It reserved its opinion on the eventual location of the railway, which was to be the subject of the Routing Decision.   One group of general complaints addressed inter alia the assessment made by the Government of the need for a new railway. These were rejected with reference to Government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the Government’s assessment did not appear incorrect or unreasonable.   Another group of general complaints challenged the Government’s estimates of   the railway’s macro-economic effects and its profitability as well as the financial calculations underlying the Government’s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the Government had commissioned.   A further group of general complaints challenged what was the Government’s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the Government could reasonably have come to the decision - having weighed alternatives and decided to give priority to human interests - to choose the most cost effective solution and to use only proven technology. Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the Routing Decision.   Specific complaints of 22 appellants were declared well-founded, which led to parts of Outline Planning Decision part 3A – and therefore Outline Planning Decision part 4 – being annulled. These twenty-two appellants did not include any of the applicants in the present case.   As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be found in advance of the Routing Decision that it would be impossible within the bandwidth to choose the eventual location of the railway so that the objections raised could be met, or that the appellants’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation.   The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision part 3A were annulled.   B.   The appeals against the Routing Decision   In total 147 appeals were filed with the Administrative Jurisdiction Division against the Routing Decision. Many of these appeals were introduced by a plurality of appellants. Appeals were brought by most of the applicants in the present case. As before, the appellants included individuals, non-governmental organisations and private companies, several Netherlands local government bodies, and also a German municipality (Emmerich). Of the applicants in the present case, W.A. Bassa, A.K. Bassa van der Vliet, C. den Brauen, P.J. de Jongh, H. Kardol-van der Meyden, J.M. Keijman, A.N. de Kreij, J.R. de Kreij, M.L. de Kreij, N.G.C. de Kreij, P.A. de Kreij, F. de Kreij-Duizer, W. de Kreij-Wingelaar, K.A. de Kruis-de Kreij and C. Kuiper (no. 46664/99) are not mentioned as appellants in the resulting decision.   As was the case in the appeal against Outline Planning Decision part 4, a large number of appellants made complaints of a general nature going to such matters as the procedure followed. Some challenged the Government’s refusal to consider modifications of the Routing Decision unless the objections put forward were of a very serious nature. Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels.   A public hearing was held on 2 December 1997. Mr and Mrs Raymakers (no. 43147/98) challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the members of that Division with the exception of the extraordinary members ( staatsraden in buitengewone dienst ), and in the further alternative, the members sitting on the case, on the ground of lack of impartiality. They argued that, since the plenary Council of State was involved in advising the Government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted.   A hearing on this matter was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal. Mr and Mrs Raymakers cited the European Court’s judgment of 28 September 1995 in the case of Procola v. Luxemburg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxemburg Conseil d’Etat and quoted several comments published in the legal press by learned authors. Given that the Council of State’s advice on the introduction of the Transport Infrastructure Planning Act ( Tracéwet ) had been “in generally positive terms” and therefore opposed to these applicants’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal. The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case.   On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, according to Article 8:15 of the Administrative Law Act ( Algemene Wet Bestuursrecht ) a request for challenge could only be directed against judges who are dealing with the case of the party concerned. As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act would have provided otherwise, no judge being a member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, insofar as the applicants’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants’ appeal, it was inadmissible. It rejected the challenge directed against the members who were so involved in the following terms:   “The Division considers that pursuant to Article 8:15 of the General Administrative Law Act each of the members who decide a case can be dismissed from a case ( gewraakt ) on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his dismissal from a case.   Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for the dismissal of that judge from a case.   Already for this reason the appellants’ submissions at the hearing cannot lead to the acceptance of their application. As to the appellants’ reliance on the Procola judgment the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding on the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.”   The hearing on the merits was resumed on 25 February 1998 and, on 28   May 1998, the Administrative Jurisdiction Division handed down its decision, which ran to 354 pages.   General complaints relating to the refusal of the Government to consider modifications to the Routing Decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not per se unreasonable; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all - including complaints about the environmental impact report - were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision part 4. It was no longer the question whether the building of the Betuweroute was acceptable, but only whether, in coming to the Routing Decision, the Government could reasonably have decided as it had.   As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained.   Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest. Moreover, the Government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the Routing Decision provided that new development which would increase it within 30 meters from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis.   As to vibration levels, the Administrative Jurisdiction Division held that it could not be found that the Government had acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants. Nor was the assessment of the likely nuisance caused by vibration per se unreasonable. Moreover, the Government had undertaken to provide active monitoring (i.e. to measure vibration levels of its own motion) in all residential buildings located within 50 meters of the railway once it was in use, and passive monitoring (i.e. to measure vibration levels after complaints were received) in residential buildings located 50 to 100 meters from the railway. The Government would then deal with unacceptable nuisance on a case by case basis. Specific problems raised by appellants would be dealt with individually.   With regard to general complaints about the arrangements for compensating for damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not be assumed at this stage already that acceptable arrangements in respect of damage were not possible.   The applicant association Vereniging Landelijk Overleg Betuweroute (no. 46664/99) made several complaints which the Administrative Jurisdiction Division construed as being of a general nature only.   Insofar as they coincided with the complaints summarised above, they were dismissed on the grounds already stated. A complaint about what the applicant association considered to be a lack of sufficient opportunity to influence the decision-making process in its early stages was dismissed by the Administrative Jurisdiction Division on the ground that the association had in fact made its views known at the stage of the preliminary draft of the Routing Decision. A complaint about the alleged failure to prepare an environmental impact report with regard to altering a stretch of the A15 motorway was dismissed on the ground that the Government was not under a legal obligation to do so. Complaints that the planned route of the railway was incomplete were dismissed as factually unfounded, gaps left by Outline Planning Decision part 4 having in the meanwhile been filled in. Complaints that the Routing Decision failed sufficiently to take into account the possibility of interferences with high-tension electricity lines and natural gas conduits were dismissed as factually unfounded. Complaints about the impact on wildlife habitat and landscape were either dismissed as lacking any foundation in fact or dealt with separately, together with similar complaints of other appellants, in so far as they concerned specific areas. In response to misgivings expressed about the storage in temporary and permanent dumps of polluted soil that might be extracted in the course of the building of the railway the Administrative Jurisdiction Division noted that the Government had undertaken to deal with polluted soil in accordance with the applicable legislation. Insofar as the applicant association claimed on technical grounds that the assessment of expected noise levels was deficient, reference was made to the standards which the Government had set itself, which did not appear unreasonable, and to the Government’s undertaking to reduce noise to a minimum by technical means such as the use of sloping screens which would absorb noise and reflect it upwards. Any remaining problems caused by noise could be dealt with locally in accordance with the legislation in force.   The applicants Maatschap Smits (no. 39032/97) objected to plans to relocate only the farmhouse, leaving the cowsheds where they were, instead of relocating the entire farm including the cowsheds on to which the house was built. It was not in dispute that farming could not continue if the farmers had to live away from the cowsheds. The Administrative Jurisdiction Division considered that, depending on where the house would be rebuilt, it would be located between 40 and 120 meters from the railw