Temporary nature: Is European nature conservation law ready for it?

Abstract

In Western European countries like Belgium and the Netherlands several 10.000 hectares of land lie unused every year, awaiting their residential, infrastructural or industrial purpose. Usually it takes a number of years before the spatial designation of such areas is finally implemented. In the meantime these areas exert a strong attraction on certain rare pioneer species, such as Natterjack Toads and Common Terns, which are benefited by human dynamics. However, to avoid the judicial restrictions which could be attached to the presence of such protected species, landowners and developers try to keep nature off their sites, by for instance intensive mowing or regular ploughing. The concept of temporary nature marks a shift in thinking about nature conservation. Instead of preventing the development of a valuable habitat or breeding site from the very beginning, the decision could also be taken to temporarily allow nature to develop on these parcels of ‘valuable’ land. In this article the author first highlights the results of the application of current nature conservation law on a situation of temporary nature conservation, building on earlier research. In addition, he analyses some recent national case law with respect to temporary nature. Also, some general remarks on the adaptability of nature conservation law for temporary nature are made. The focus mainly lies on the Belgian (Flemish) situation, but, as temporary nature is already being applied in the Netherlands, reference is also made to this practice, too. Given the fact that the applicable nature conservation law in both countries consists mainly in an implementation of the European Directives, the conclusions of this contribution can also serve as an example for other European countries.