New Supreme Administrative Court Decision On Augarten Lowering Regarding Specific Rights Of Recognised Environmental Organisations

• Published date: 09 December 2022
• Subject Matter: Environment, Environmental Law
• Law Firm: Schoenherr Attorneys at Law
• Author: Ms Sarah Wolf and Jutta Mayer

In a recent decision,¹ the Austrian Supreme Administrative Court (SAC) addressed party status and the requirements for an eligible complaint by recognised environmental organisations (EOs)² in permit procedures under water law.

Facts

The present case concerns the redesign of the bank of the River Mur near the Augarten (a public park) in Graz, Styria (the Augarten lowering). In January 2019, the water law permit was granted for the project. EOs were not included in this proceeding. Due to the denial of the suspensive effect, the project was immediately implemented and completed in 2020.

Several EOs appealed against the permit to the Styrian Administrative Court, arguing that they were entitled to participate in approval procedures for projects that could have an impact on the state of the water body according to paragraph 104a of the Water Rights Act (WRA) and to file a complaint.³ In addition, the EOs claimed that the Augarten lowering connects with the Mur power plant. Therefore, an environmental impact assessment (EIA) was required.

The court rejected all complaints for lack of party status. The court stated that while EOs did have the right to participate in and contest water law proceedings (as far as EU environmental law is concerned) the right to assert a violation of paragraph 104a of the WRA is not available to EOs if the (possible) negative effects of a project on the water status can be "excluded from the outset". As this was the case here, they could not file a complaint. Furthermore, the court assumed that there was no factual connection between the Augarten lowering and the Mur power plant. Therefore, an appeal by EOs on the EIA issue was not admissible.

Two EOs appealed against the decision of the court to the SAC, which overturned the court's decision.

Decision

The SAC has in fact already dealt with the Augarten lowering in the past from the point of view of nature conservation law.⁴ According to administrative law, all necessary permits must be obtained for a project under the respective substantive laws (ie, cumulation principle).

Therefore, the SAC now also had to deal with an appeal against the decision of the water law authority regarding the same project. In this decision the following pronouncements are examined in more detail.

Rights of EOs under WRA

Following the judgment of the ECJ in the Protectcase,⁵ EOs were granted participation and challenge rights in connection with procedures carried out in the implementation of the Water...