Nature conservation reform creates legal uncertainty for developers, says NGO

Reforms to Luxembourg’s laws to protect nature conservation are not precise enough and could lead to legal chaos for property developers, environmental campaigners said on Monday, with activists warning they are themselves considering a lawsuit to challenge the existing draft bill.

Blanche Weber, the head of environmental lobby group Mouvement Ecologique (Méco), described the Nature Conservation Act, presented by Environment Minister Serge Wilmes last week, as “outrageous” and “half-baked”, saying that Méco could not accept the reform in its current state and that it would take legal action against it in Luxembourg or before the EU courts if necessary.

Draft bill presented to cut red tape

The act was presented by Wilmes last week as a bill that promises to accelerate building processes while solidifying environmental protection.

The draft law – a reform pledged by the CSV-DP coalition after it took office last November – hinges on several concepts, such as “nature on time”, where landowners can allow natural vegetation to grow on their land for up to 15 years without paying compensation if they then decide to rip it out for building projects.

The proposed law allows for nature conservation to be sacrificed in favour of housing construction, Méco said.

Wilmes justified the reform by claiming that cutting red tape would help solve the housing crisis – another priority identified in the government’s coalition agreement last year – but the draft bill would only achieve this to a limited extent, Weber believes.

One of the organisation’s key criticisms revolves around the proposal of the couvert boisé. Through this concept, municipalities are encouraged to cover at least 20% of their land with trees or hedges to support biodiversity. Meeting this in turn exempts municipalities from certain compensation requirements, for example, if trees have been removed during construction projects.

The concept refers to “woody structures” taller than 1.5 metres and no distinction is made between the type of planting, even though old local trees have much greater added value than exotic shrubs, Méco claimed.

Unclear for building projects

For developers, environmental campaigners said an issue could arise from the fact that it is unclear what would happen if the municipality falls below the 20% threshold during the planning phase of a building project.

The basis of this measure – the 20% threshold and 1.5m height – is also questionable, said Méco, explaining that such legally enforceable measures needed to be scientifically justified.

© Photo credit: Shutterstock

The ministry had not given Méco a reasoning on how the parameters of this measure were decided, Weber claimed.

Furthermore, only around four out of ten municipalities across Luxembourg currently fulfil the 20% requirement; for those communes, according to Weber, that means there is no incentive to make further efforts to protect additional biotopes.

Risk of breaking EU law

Méco said it considered the principle of “nature on time” to be positive in principle, but lacking when it came to the specifics.

Currently, developers have to compensate if they remove a biotope during a building project.

Under the new proposed reform, only trees younger than 15 years old fall under the measure, whereas older organisms do not, said Meco.

According to Claire Wolff, the head of biodiversity at Méco, it is difficult to distinguish between the two types of plants.

The draft bill also does not clearly specify who developers can turn to, Méco said, if they are unsure of what to do and what consequences will ensue in the case of an erroneous assessment.

The proposed changes could lead to “legal chaos”, the organisation said in its analysis, adding that species protected under EU law could colonise the spaces eligible for “nature on time” and that developers thus risk violating European regulations if their land is not assessed before building projects begin.

Positive aspects

While Méco widely criticised the Nature Conservation Act, it also praised what it said were some of the bill’s positive contributions to the environment, such as the introduction of municipal compensation pools, which allow for localised compensation for damages to the environment.

The movement also praised the fact that certain nature conservation measures, such as the creation of a pond, could be enacted without a permit in future.

“This will speed up the procedures, which is very good,” said Wolff, who also welcomed plans that the nature conservation authority would in future analyse smaller-scale projects in order to reduce the costs for the developers.

(This article was originally published in the Luxemburger Wort. Translation, editing and additional reporting by Tracy Heindrichs)