Volume 4 (1996) / Issue 2
doctrine of encorachment, environmental damage, environmental impairment, use of private law by public authorities
This article examines the right of public authorities to use private law in order to receive either injunctive relief, compensation for environmental damage, or the restoration of environmental impairment. It focuses on Dutch law which allows public authorities to use private law providing that they satisfy the 'encroachment doctrine' which was established in the Dutch Hoge Raad's (Supreme Court's) judgment in the Windmill case. The premise of this test is that public authorities are only allowed to use private law when this does not conflict with or encroach on public law. Failure to satisfy the requirements of the encroachment doctrine prevents the authorities from relying on private law. Whether a public provision is unacceptably encroached upon depends on, inter alia, the content and purpose of the regulation, the manner and extent to which citizens' interests are protected under public law and whether a comparable result can be reached under public law.
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