In a groundbreaking ruling the Court of Appeal in the south of the Netherlands has ruled that citizens have to be protected against pesticides with a 250 meter buffer strip between houses and field. This makes lily cultivation – which uses a very large amount of pesticides – in this case impossible next to the houses until at least 2028. The court concludes that the Dutch authorities have not done enough to protect the most vulnerable.
Lily growing requires almost weekly spraying of a cocktail of pesticides. Large scale production can bring profits for the grower, but comes with huge risks for citizens, nature and water. In various areas in the Netherlands concerned citizens have started court cases to stop the growing of lilies next to houses and schools. In this specific case 35 citizens from the town of Sevenum asked for a ban and the lower court agreed. The lily grower appealed.
The appeal court argues that there is a sophisticated system to authorise pesticides. However, no research is done into the risks of neurodegenerative diseases occurring later in life, such as Parkinson's disease and risks of developmental disorders for young and unborn children. The national authorities should have done a risk assessment in connection with the assessment of whether, and if so how, to apply the precautionary principle in specific circumstances like in this cas. So far the authorities failed to do so. On top of that, the court concludes that article 12 of the Sustainable Use Directive states that the vulnerable should be protected to reduce the risks and impacts of pesticide use on human health. The court specifically states that vulnerable people “includes pregnant and lactating women, unborn children, infants and children and the elderly, as well as workers and residents exposed to high doses of pesticides over a long period of time”.
Quotes from the court ruling
“The court of appeal considered that the authorisation system for plant protection products is a sophisticated system that is surrounded by safeguards and that therefore, in principle, [the grower] and the people living in the neighbourhood may rely on the results of the authorisation assessment by the European Food Safety Authority (hereinafter: EFSA), the European Commission and ultimately the Board for the Authorisation of Plant Protection Products and Biocides (hereinafter: Ctgb). However, the court of appeal considers special circumstances to be present in this case between these parties that mean that an exception should be made to this. This is because in this case there is a situation in which during the authorisation procedure for the plant protection products to be used, no research was conducted into the risks of neurodegenerative diseases occurring later in life, such as Parkinson's disease and risks of developmental disorders for young and unborn children. However, the products to be used do pose a potential risk of developing these conditions. This implies that the Member State of the Netherlands and/or the Ctgb should have a risk assessment carried out by scientific experts in connection with the assessment of whether, and if so how, to apply the precautionary principle.
This assessment did not take place, whereas under European Regulation 1107/2009 for the Netherlands this assessment is assigned to the Member State and the Ctgb. Under these circumstances, [appellant] cannot rely on the fact that there is no real risk of health damage with the plant protection products to be used by him. In addition, the court considers that the Netherlands has not fully implemented Article 12 of Directive 2009/128/EC in national regulations, which means that there is no legal obligation for farmers to minimise or even omit the use of pesticides in the vicinity of vulnerable groups, such as children.
The court considers that in view of the facts and circumstances at issue in this case, [the appellant] has a special duty of care towards neighbouring residents living in the immediate vicinity, and that he is in breach of it and committing a tort in that he is nevertheless going to grow lilies in the 2027 season using the plant protection products referred to in this case to the extent necessary for lily cultivation. Therefore, a measure of a temporary nature in the form of a ban until 2028 is appropriate.”
Sustainable Use of pesticides Directive
The appeal court also refers to the Sustainable Use of pesticides Directive. EU Member states already agreed on this in the EU Directive in 2009, but so far it is badly if not hardly implemented. The court reminds us of what was agreed on.
“The court then considers the following in relation to Article 12 of Directive 2009/128/EC. [….] It establishes a framework for Member States to achieve a sustainable use of pesticides by reducing the risks and impacts of pesticide use on, inter alia, human health. Article 12 instructs member states to ensure that, taking into account hygiene, public health and biodiversity requirements, or the results of relevant risk assessments, pesticide use is minimised or even prohibited in certain specific areas. Appropriate risk management measures should be taken by Member States and, in the first instance, the use of low-risk plant protection products, as defined in Regulation (EC) No 1107/2009, and biological control products should be considered. The specific areas referred to are, inter alia, areas used by the general public or by vulnerable groups, as defined in Article 3 of Regulation (EC) No 1107/2009. (court: This includes pregnant and lactating women, unborn children, infants and children and the elderly, as well as workers and residents exposed to high doses of pesticides over a long period of time), such as parks, public gardens, sports and recreation grounds, school grounds and playgrounds, and areas close to healthcare facilities.”(3.40 of the ruling)
This leads to the following conclusion: “In those circumstances, [the grower] is subject to a heightened standard of care in view of the interests of local residents in the immediate vicinity of his cultivation site where he intends to use the plant protection products at issue here on the scale required for lily-growing. In addition, that standard of care is consistent with the aim and purpose of Article 12 of Directive 2009/128/EC, which is to protect vulnerable groups such as pregnant or breastfeeding women, unborn children, infants and children and the elderly staying in or near spray sites from exposure to plant protection products. That heightened standard of care entails for [grower] in the circumstances of its case, as described above, to refrain from using the intended plant protection products for lily farming in the proximity of nearby residents. 'Proximity' in this case should be understood as “at least 250 metres” in view of the results of the CAB. It follows from production 2 of the neighbouring residents (cadastral map) and production G2 of [grower] (plot and distances from neighbouring residents) that given the limited dimensions of [growers] plot, lily cultivation is then not possible.” (3.47 of the ruling)
The appeal court ruling can be found here (in Dutch)
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