Third-party appeal rights and the regulatory state: Understanding the reduction of planning appeal options

With the rise of the risk society came the regulatory state. Increasingly, governments are turning to law for achieving their policy goals, also in the field of urban and environmental planning. Legal rules do not only reduce the risks for society but also for policy makers, since those standardise decision-making, hence reducing discretion and chances of personal failure. The result is an increasingly complex legal system and a juridification of planning in practice. While planning has become more legalistic, in the Netherlands we see at the same time that the access to the legal system is being reduced. How can this seeming contradiction be explained? In this paper we explore, conceptually, the relationship between the risk society and the regulatory state. Then we turn to the empirical body of the paper, in which we observe that Dutch government is responding to the negative consequences of the regulatory state by taking major decisions with regard to the entrance to the legal system. Third-party rights are under scrutiny. We conclude our paper by arguing that government has chosen the easiest way out of the juridification of planning. Rather than a fundamental contemplation on the relationship between law and society, government pragmatically chooses to limit access to the legal system. This leads to a paradoxical situation where our (environmental) quality requirements for a land-use plan are becoming greater, while the means available to citizens for ensuring that these requirements are met move in the opposite direction.