CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 6 mai 2003

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display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt }                   CASE OF KLEYN AND OTHERS v. THE NETHERLANDS   (Applications nos. 39343/98, 39651/98, 43147/98 and 46664/99)                     JUDGMENT       STRASBOURG   6 May 2003       In the case of Kleyn and Others v. the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Mr   G. Ress ,   Sir   Nicolas Bratza ,   Mr   L. Caflisch ,   Mrs   V. Strážnická ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   N. Vajić ,   Mr   J. Hedigan ,   Mrs   W. Thomassen ,   Mrs   M. Tsatsa - Nikolovska ,   Mr   A.B. Baka ,   Mr   K. Traja ,   Mr   M. Ugrekhelidze ,   Mr   V. Zagrebelsky ,   and also of Mr P.J. Mahoney , Registrar , Having deliberated in private on 27 November 2002 and 9 April 2003, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in four applications (nos. 39343/98, 39651/98, 43147/98 and 46664/99) against the Kingdom of the Netherlands lodged between 8 July 1997 and 16 March 1998 with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-three Netherlands nationals, Mr A.A. Kleyn, Mr A. van Helden, Mrs C.H. van Helden-Schimmel, Mr A. Hougee, Mrs   O.L. Hougee-van Frankfoort, Mr C.M. van Burk, Ms C.J.P. Kleijn, Ms   P.M. Kleijn, Ms C.J. Kleijn, Mr M.A.J.E. Raymakers, Mrs P.W.N. Raymakers-Spreeuwenberg, Mr A.J.Th. Berndsen, Mrs B.A.G. Berndsen-Wezendonk, Mr P. Bunschoten, Mr W.F. van Duyn, Mr C.J. Hanhart, Mr   J.H. Kardol, Mr C. de Kreij, Mr G.J. van Lent, Mrs G. van Lent-de Kroon, Mr S.J.B.A. Pompen, Ms C.M.M. Wennekes and Mr M. Witvliet, and by twelve companies, Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., Grasshopper Reclame, M.C. Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V., Kuwait Petroleum (Nederland) B.V., Sterk Technisch Adviesbureau B.V., Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V. and Maatschap Takel- en Bergingsbedrijf Hanhart (“the applicants”). 2.     The applicants in applications nos. 39343/98, 39651/98 and 43147/98 were represented by Mr K.F. Leenhouts, a lawyer practising in Tiel. The applicants in application no. 46664/99 were initially represented by the Vereniging Landelijk Overleg Betuweroute (Association for Nationwide Consultation on the Betuweroute ), which subsequently delegated its representation of these applicants to Mr Leenhouts. The Netherlands Government (“the Government”) were represented by their Agent, Mr   R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. 3.     The applicants alleged that, from an objective point of view, the Administrative Jurisdiction Division of the Netherlands Council of State ( Raad van State ) could not be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention in that the Council of State combined both advisory and judicial functions. They also raised further complaints under Article 6 § 1 and Article 8 of the Convention and Article 1 of Protocol No. 1. 4.     The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The applications were allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. On 3 May 2001 this Chamber decided to join the applications, to give notice of the complaint of the lack of objective independence and impartiality of the Administrative Jurisdiction Division of the Council of State to the Government (Rule 54 § 2 (b)) and to declare inadmissible the remainder of the applications. 6.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). On 2 July 2002 a Chamber of that Section, composed of Mr J.-P. Costa, Mr A.B. Baka, Mr Gaukur Jörundsson, Mr   K.   Jungwiert, Mr V. Butkevych, Mrs W. Thomassen and Mr   M.   Ugrekhelidze, judges, and Mrs S. Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 7.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 8.     The applicants and the Government each filed written observations on the admissibility and merits. In addition, third-party comments were received from the Italian and French Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3). The applicants replied to those comments (Rule 61 § 5). 9.     A hearing on admissibility and the merits took place in public in the Human Rights Building, Strasbourg, on 27 November 2002 (Rule 59 § 3).   There appeared before the Court:   (a)     for the Government Mr   R.A.A. Böcker , Ministry of Foreign Affairs,   Agent , Mr   E. Daalder , Deputy State Advocate,   Counsel , Ms   B. Drexhage , Ministry of the Interior       and Kingdom Relations, Ms   L. Ling Ket On , Ministry of Justice, Ms   W. Warmerdam , Ministry of Transport,   Advisers ; (b)     for the applicants Mr   K.F. Leenhouts , Mr   T . Barkhuysen ,   Counsel , Ms   C. Fenijn ,   Adviser .   The applicants Mr van Duyn and Mr Raymakers also attended the hearing. 10.     The President of the Court gave the applicants’ representatives leave to use the Dutch language (Rule 34 § 3). The Court heard addresses by Mr   Böcker and Mr Daalder, and by Mr Leenhouts and Mr Barkhuysen. 11.     Under the provisions of Article 29 § 3 of the Convention and Rule   54A § 3, the Court decided to examine the merits of the applications at the same time as their admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The applicants Application no. 39343/98 12.     Mr A.A. Kleyn was born in 1941 and lives in Asperen. He is a managing director of the limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) Kleijn Financierings- en Leasemaatschappij B.V. and of the limited liability company Exploitatiemaatschappij De Zeiving B.V. He is also part-owner of the restaurant “De Goudreinet”. Application no. 39651/98 13.     Mettler Toledo B.V. is a limited liability company. Its premises are located in Tiel. Van Helden Reclame-Artikelen B.V. is a limited liability company. Its premises are located in Tiel. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, who were both born in 1946, live next to the company’s business premises. Grasshopper Reclame is a registered partnership ( vennootschap onder firma ) established under Netherlands law. Its premises are located in Tiel. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee-van Frankfoort, who were born in 1947 and 1948 respectively, live above the company’s business premises. M.C. Gerritse B.V. is a limited liability company. Its premises are located in Tiel. Texshop B.V. is a limited liability company. Its premises are located in Tiel. Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel. Maasglas B.V. is a limited liability company. Its premises are located in Tiel. Mr C.M. van Burk, who was born in 1953, operates a petrol station on the A15 motorway, near Meteren. Kuwait Petroleum (Nederland) B.V. is a limited liability company established in Rotterdam. It owns the petrol station operated by Mr   van   Burk. Sterk Technisch Adviesbureau B.V. is a limited liability company. Its premises are located in Spijk. Kleijn Financierings- en Leasemaatschappij B.V. and Exploitatiemaatschappij De Zeiving B.V. are both limited liability companies and – together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms   C.J. Kleijn, who were born in 1936, 1970 and 1978 respectively – are joint owners of a number of plots of land along the A15 motorway and part- owners of the restaurant “De Goudreinet” that is located on one of the plots. Application no. 43147/98 14.     Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg, who were born in 1956 and 1959 respectively, live in Kerk-Avezaath. Application no. 46664/99 15.     Mr A.J.Th. Berndsen and Mrs B.A.G. Berndsen-Wezendonk were born in 1950 and 1952 respectively and live in Groessen. Mr P. Bunschoten was born in 1955 and lives in Herveld. Mr W.F. van Duyn was born in 1962 and lives in IJzendoorn. Mr C.J. Hanhart was born in 1938 and lives in Tiel. Mr J.H. Kardol was born in 1938 and lives in Meteren. Mr C. de Kreij was born in 1948 and lives in Giessenburg. Mr G.J. van Lent was born in 1944 and lives in Ochten. Mrs G. van Lent-de Kroon was born in 1910 and lives in Echteld. Mr S.J.B.A. Pompen was born in 1963 and lives in Tiel. Takel- en Bergingsbedrijf Hanhart is a partnership ( maatschap ) of which Mr C.J. Hanhart and Mr S.J.B.A. Pompen are the partners. Its premises are located in Tiel. Ms C.M.M. Wennekes was born in 1949 and lives in Herveld. Mr M. Witvliet was born in 1944 and lives in Kesteren. B.     Factual background 16.     The territory of the Netherlands includes the estuaries of the Rhine, Maas and Schelde, all of which flow into 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 Rotterdam harbour and Schiphol Airport, near Amsterdam, developing into important transit points for goods. 17.     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 east European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic. 18.     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. 19.     In the early 1990s the government decided on a policy of maintaining and further improving the competitiveness of Rotterdam harbour as Europe’s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseilles 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. C.     The Transport Infrastructure Planning Bill ( Tracéwet ) and the advisory opinions of the Council of State ( Raad van State ) 20.     On 1 July 1991, in accordance with section 15 of the Council of State Act ( Wet op de Raad van State ) and upon a proposal of the Minister for Transport and Communications ( Verkeer en Waterstaat ) and the Minister for Housing, Planning and Environment Management ( Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer ), the Queen transmitted the Transport Infrastructure Planning Bill ( Tracéwet ) to the Council of State for an advisory opinion. 21.     The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra-regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that only one single appeal could be lodged with the Council of State against a decision of central government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals before both the ordinary courts and the Council of State against decisions and plans of local authorities. 22.     The Council of State transmitted its advisory opinion to the government on 9 December 1991. Its opening paragraph reads: “The Council of State fully acknowledges the problems that the signatories to the Transport Infrastructure Planning Bill wish to resolve. It often concerns large, technically complex and expensive infrastructure projects. These must not only be balanced against diverse and weighty interests relating to traffic and transport, road safety, town and country planning and the environment, but in addition it is desirable to have the widest possible public support for these projects. The current decision-making procedure – entailing a non-statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure, against which an appeal may be lodged with a judge – can take much time. Furthermore, where a number of provincial and municipal bodies are involved, the decision-making process is diffused over several regional and local zoning plans. The Council of State therefore shares the government’s concern about the outlined problems. It will examine hereafter whether, in its opinion, the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable.” 23.     In its opinion the Council of State noted, among other things, the absence of any binding time-limits for the administrative authorities. It expressed doubts as to whether the procedure under the new bill, if enacted, would be any shorter than the aggregate of separate procedures necessary hitherto. It also considered that the new bill created uncertainty at the lower levels of government (the provinces, the regional surface waterboards ( waterschappen ) and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals. It found that the considerable limitation of legal protection constituted an important objection to the new bill. 24.     Point 8 of the advisory opinion reads: “Having reached the end of the examination of the legal protection in the framework of this bill, from which it can be seen that the Council of State has serious objections to the removal of a routing determination [ tracévaststelling ] from general town and country planning considerations, it nevertheless wishes to point out that, when the Council of State leaves aside here the problem dealt with under point 2 (length of the decision-making process under the bill), those serious objections would be less weighty if the bill only related to routing determinations of such exceptional (supra ‑ )national importance that it must be clear to anyone that in the case in question the provincial, regional and local interests should yield to them. In that case, the routing plans [ tracés ] referred to in section 24b should be explicitly mentioned in the bill. It would be preferable to reconsider the bill in this sense.” 25.     The Council of State made a number of suggestions for improving the drafting of the bill before it was transmitted to Parliament. Its final conclusion reads: “The Council of State advises you not to send this bill to the Lower House of the States General until the above observations have been taken into account.” 26.     In their reply of 28 January 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management noted – as regards the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one – among other things that it might take a very long time to obtain the cooperation of the local authorities. It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their cooperation, this was done at the final stage, that of the routing decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on legal grounds, against a routing decision. 27.     As to the remarks made under point 8 of the advisory opinion of the Council of State, the ministerial response reads as follows: “With the approval of the Council of Ministers (decision of 24 January 1992), we decided to include in the bill a separate regulation for large projects of national importance. In line with this, the transitory arrangement referred to in section 24b will be concentrated on the high-speed railway and the ‘ Betuweroute ’ [railway]. The original section 24b was included exclusively in view of these projects and can now be dropped, as a provision will be devoted to these projects. Since, with the inclusion of the special procedure for large projects and the above-indicated transitional arrangement, the bill will be further amended, we find it desirable to consult the Council of State on this. The amendments to the bill will therefore be submitted for advice to the Council of State in the form of a ministerial memorandum of amendments.” 28.     The Minister for Transport and Communications made a number of changes to the bill in the light of the Council of State’s criticism. The amendments were submitted to the Council of State for advice on 6   February 1992. 29.     In its advisory opinion of 8 May 1992, the Council of State considered, inter alia : “... it desirable to indicate in section 24g that the notions ‘high-speed railway’ and ‘ Betuweroute ’ railway relate to specific [railway] connections between specifically named places.” 30.     The ministerial reply of 19 May 1992 to this recommendation states: “This advice has been followed. It is now indicated in section 24g that the high-speed railway relates to the Amsterdam-Rotterdam-Belgian border route, and the ‘ Betuweroute ’ [railway] to the Rotterdam-Zevenaar route.” 31.     The government then submitted the bill to the Lower House ( Tweede Kamer ) of Parliament, together with the Council of State’s advisory opinion and the ministers’ comments. The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994. It contains no specific mention of the high-speed railway or the Betuweroute railway, but does provide for a special procedure for projects of national importance. D.     The planning process of the Betuweroute railway 1.     The preparatory stages 32.     An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal) – known as the “Betuwe line” ( Betuwelijn ) – links 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 – “the NS”) and published in 1991 concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient. 33.     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 A15 motorway. The NS was required to prepare an environmental impact report ( milieu-effectrapportage ). 2.     Outline Planning Decision – Part 1 34.     On 16 April 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management together presented the first draft of the outline planning decision ( Planologische Kernbeslissing ) within the meaning of section 2a of the Town and Country Planning Act ( Wet op de Ruimtelijke Ordening ), which later became known as “Outline Planning Decision – Part 1”. The environmental impact report prepared by the NS was appended to this document. Pursuant to the then applicable section 2a of the Town and Country Planning Act, it was laid open for public inspection, notice of its publication being given through the Netherlands Government Gazette ( Staatscourant ) and the media. Anyone interested could then make his or her views known. The time-limit for doing so was 27 July 1992. More than 1,800 reactions were received. 35.     On 31 August 1992 the Netherlands Minister for Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increased cooperation 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 to the German border via Zevenaar. 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. 3.     Outline Planning Decision – Part 2 36.     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, that is provinces, municipalities and regional surface waterboards. 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. 4.     Outline Planning Decision – Parts 3 and 3A 37.     On 18 May 1993 the government published their 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. 38.     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. 5.     Outline Planning Decision – Part 4 39.     Outline Planning Decision – Part 3A was approved by the Lower House of Parliament on 22 December 1993 and, on 12 April 1994, by the Upper House ( Eerste Kamer ) of Parliament. It became known thereafter as Outline Planning Decision – Part 4 and came into force after its publication in the Netherlands Government Gazette on 27 May 1994. 40.     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 Rotterdam, the Netherlands’ main port, and Schiphol Airport, now served most of the European continent 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 the railway infrastructure was better developed and in a better state of repair than the roads. 41.     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 also provided for the development of new railways. 42.     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 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 conclusions of the Central Planning Office were rather more guarded, they too indicated that the project was viable. 43.     Other 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 ”), 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. 44.     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 the existing railway infrastructure in the rest 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 undergoing further development. 45.     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 traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact. Similarly, conventional rather than innovative technology was chosen. 46.     Outline Planning Decision – Part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal band of 100 m. Within this band 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, with reasons being given for the choices made and for the rejection of alternatives. 47.     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 ampere (dBA) on the outside walls of residential buildings, a “preferential noise level” of 57 dBA would be applied in anticipation of stricter standards which were expected to come into force in 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 dBA might be tolerated at specific locations, but even there they were not to exceed 37 dBA inside residential buildings with the windows closed and ventilation apertures open. Although there might be an 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 dBA. 48.     Some 150 residential buildings were found to be located within 50 m 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 had also 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. 49.     The danger that might be result from 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. 50.     There had been an audit of the costs of the project as proposed by the government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138,000,000 Netherlands guilders (NLG). Of this sum a portion of NLG 1,975,000,000 would be paid out of the State budget. The remaining NLG 5,163,000,000 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 750,000,000 occasioned by changes imposed by the Lower House of Parliament and NLG 375,000,000 required to meet objections and special requests made by individuals and local authorities. 51.     A new government took office on 22 August 1994, which in pursuance of 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 for Transport and Communications and the Minister for 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. 6.     The Betuweroute Routing Decision ( Tracébesluit ) 52.     In accordance with the procedure for projects of national importance under the Transport Infrastructure Planning Act which had come into force on 1 January 1994, a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – 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, non ‑ governmental organisations and local-government bodies. These led to modifications, which were incorporated into the draft routing decision. 53.     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 into the final routing decision, in so far 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 in addition to those foreseen in Outline Planning Decision – Part 4. 54.     The routing decision was finalised on 26 November 1996 by the Minister for Transport and Communications in agreement with the Minister for 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 by the present case – for which further planning was required. 55.     The routing decision comprises twenty-four 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. 56.     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 regardless of 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, other 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 the 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 – “silent areas”). The residential function of 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. 57.     Compensating measures for the preservation of the environment and the existing landscape were to include, among 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. 58.     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. 59.     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. E.     Appeals against Outline Planning Decision – Part 3A and the Betuweroute Routing Decision 1.     Appeals against Outline Planning Decision – Part 3A 60.     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, many jointly by a plurality of appellants. 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 in so far as their respective interests would be affected. 61.     The bench of the Administrative Jurisdiction Division dealing with the appeals was composed of three ordinary councillors ( Staatsraden ) of the Council of State, namely Mr J. de Vries (President), Mr R. Cleton and Mr   R.H. Lauwaars (members). Mr de Vries had been appointed Ordinary Councillor in 1982. Mr Cleton and Mr Lauwaars had been appointed ordinary councillors in 1992 and 1994 respectively. 62.     On 31 January 1997, after sixteen hearings held between July and September 1996, the Administrative Jurisdiction Division delivered its decision. It rejected all the complaints of a general nature. 63.     As to the specific complaints, it noted that Outline Planning Decision – Part 3A was not yet final as regards the definitive 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 band as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the band specified or that, in view of possible measures to be taken, the interests of the affected appellants had been adequately taken into account. It reserved its opinion on the definitive location of the railway, which was to be the subject of the routing decision. 64.     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 of the need to construct the railway did not appear incorrect or unreasonable. 65.     Another group of general complaints challenged the government’s estimates of the railway’s macro-economic effects and its profitability and 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. 66.     A further group of general complaints challenged 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. 67.     Specific complaints of twenty-two appellants were accepted as being well-founded, which led to parts of Outline Planning Decision – Part 3A (and therefore Outline Planning Decision – Part 4) being annulled. None of those twenty-two appellants are applicants in the present case. 68.     As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections, or that the appellants’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation. 69.     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. 2.     The appeals against the Betuweroute Routing Decision 70.     In total 147 appeals were lodged with the Administrative Jurisdiction Division against the Betuweroute Routing Decision. Many of these appeals were introduced by a plurality of appellants, including the applicants in the present case. As was the case in the appeals against Outline Planning Decision – Part 3A, a large number of appellants made complaints of a general nature dealing with 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 nois