Construction activities under the Environment and Planning Act

This post is part of the Environment and Planning Act blog series. In this blog series, in the run-up to entry into force of the Environment and Planning Act on 1 January 2024, we each time highlight a specific topic of that Act.

Permit system under the Environmental Permitting (General Provisions) Act  

What was the situation with the building permit under the old law? Under the regime of the Environmental Permitting (General Provisions) Act, it is, in principle, prohibited to carry out a construction activity without an environmental permit (Article 2.1(1)(a) of the Environmental Permitting (General Provisions) Act). Excluded from this building prohibition are the construction activities listed in Articles 2 and 3 of Annex  II to the Living Environment Law Decree: these may be carried out without a permit. The competent authority (usually the Municipal Executive) assesses an application for an environmental permit against a limited number of grounds for refusal, in brief and simplified terms: the Building Decree 2012, the zoning plan (or management ordinance), the reasonable requirements of aesthetics, and the building regulations (Article 2.10(1)(a) to (d) of the Environmental Permitting (General Provisions) Act). In the absence of any grounds for refusal, it follows from the nature of this so-called ‘limitative’ system that the environmental permit for the construction activity must be granted. The competent authority has no scope to weigh up the interests involved. This is different to the extent that the building plan conflicts with the zoning plan: under Article 2.10(2) of the Environmental Permitting (General Provisions) Act, the application for an environmental permit in that case serves as an automatic request for permission to deviate from the zoning plan within the meaning of Article 2.1(1)(c) of the Environmental Permitting (General Provisions) Act (a prohibition that relates not only to the use of grounds and structures in conflict with the zoning plan, but also to the construction activity in deviation from the zoning plan). In this situation, the competent authority assesses, based on its discretionary power and using the assessment framework set out in Article 2.12(1) of the Environmental Permitting (General Provisions) Act, whether it is still willing to grant planning permission for the building plan from the perspective of ‘sound spatial planning’, so that the environmental permit can be granted after all.  

‘Split’ of construction activity under the Act 

What will change when the Act comes into force? The legislature has determined that in building practice, at present, the aforementioned rules are often unnecessarily tested. Within the current permit system, the competent authority must assess both the spatial and structural aspects of a building plan that requires a permit, even though that is not always necessary or useful: according to the legislature, a preventive structural test for a construction activity that has been made subject to a permit requirement solely on the basis of spatial considerations may be dispensed with perfectly well (and vice versa). For this reason, the legislature has introduced a ‘split’ under the Act between the assessment of the spatial aspects of a building plan (the test of whether a building plan complies with decentralised rules on dimensions, location, placement and the appearance of the structure) and the assessment of its structural aspects (the test of whether the structure complies with nationally uniform structural requirements). The legislature thereby splits the construction activity within the new permit system into two distinct activities: an environmental plan activity (consisting of a spatial construction activity) and a technical construction activity (referred to as ‘construction  activity’ (bouwactiviteit) in the law and implementing regulations, not to be confused with the term ‘construction activity’ (bouwactiviteit) in Annex A to the Act, which has a broader meaning). Incidentally, the term bouwwerk (structure) will not change under the Act. 

In certain circumstances, both types of construction activity are subject to an environmental permit requirement. This means that an initiator, who is also responsible under the new regime for obtaining all the necessary environmental permits in a timely manner, sometimes needs an environmental permit for both construction activities. The permit regime for both types of construction activities is outlined below. 

Construction ban and environmental plan activity 

An environmental permit for the construction environmental plan activity is required if the environmental plan does not automatically allow the construction of the structure in question and it is not an activity that has been declared permit-exempt by the state (within the meaning of Article 2.29 of the Besluit bouwwerken leefomgeving (Structures (Living Environment) Decree). There are two types: the environmental plan activity covered by the environmental plan, and the environmental plan activity not covered by the environmental plan (Annex A to the Act, Part A). In an environmental plan, a municipal council may explicitly make the construction or use of a structure subject to an environmental permit requirement under certain conditions (we previously addressed the environmental plan in this blog post). Those activities will require an environmental permit for an environmental plan activity covered by the environmental plan. The environmental plan will then state not only that the construction or use requires an environmental permit, but also under what conditions that environmental permit will be granted: the assessment rules. Because of its limitative-imperative nature, the competent authority must grant the environmental permit for an environmental plan activity covered by the environmental plan if the activity does not conflict with the conditions imposed on it in the environmental plan (Article 5.18(1) of the Act in conjunction with  Article 22.29 of the Dowry in conjunction with Article 8.0a(1) of the Besluit kwaliteit leefomgeving (Living Environment (Quality) Decree). If the construction activity does not fit within the environmental plan (including any deviation possibilities covered by the environmental plan) or if no regulations apply, it is an environmental plan activity not covered by the environmental plan. Before deciding on the application, the competent authority must first assess whether the environmental permit can still be granted with a view to (exclusively) a balanced allocation of functions to locations (Article 5.18 in conjunction with Article 5.21(1), opening lines and (b), of the Act in conjunction with Article 8.0(2) of the Living Environment Quality Decree). The competent authority's scope for assessment is limited by the instruction rules of the province and the national government (Article 2.22 in conjunction with Article 2.33 and 2.24 in conjunction with Article 2.34 of the Act).  

Under the Environmental Permitting (General Provisions) Act, an environmental permit for a construction activity was always tested against the zoning plan. To avoid a gap between the moment the building prohibition under Article 2.1(1)(a) of the Environmental Permitting (General Provisions) Act expires and the moment the environmental plan legislature incorporates a zoning permit requirement in the final part of the environmental plan, the Dowry provides for a building prohibition or, as the case may be, a permit requirement covered by the environmental plan for the temporary part of the environmental plan (which comes into effect by operation of law on 1 January 2024). Under this building prohibition, it is prohibited to carry out a construction activity and to maintain and use the structure to be built without an environmental permit (Article 2.26 in conjunction with Article 2.27 and 2.28 of the Act Implementing the Environment and Planning Act). In short, as of 1 January 2024, in view of the transitional law, a construction activity will always have to be tested against spatial rules, subject to the exceptions set out in Article 2.29 of the Building Environment Decree. The ‘split’ will therefore only really come into being when municipal councils adopt the final part of their environmental plans.  

Assessment of the appearance of structures (building aesthetics)

The review of an environmental plan construction activity may include the assessment of the appearance of structures. Under the transitional law included in the Dowry, both the preventive building standards assessment of structures requiring a permit and the repressive building standards assessment (the ‘excesses rule’) take place on the basis of the criteria of the building standards memorandum referred to in Article 12a(1) of the Woningwet (Housing Act), as it read before the Act entered into force (Article 22.29(1)(b) and Article 22.26 of the Dowry, respectively). 

Because of the expiration by operation of law of the current building standards committee as of 1 January 2024, the competent authority will be obliged to instruct a municipal committee (within the meaning of Article 17.9(1) of the Act) yet to be set up to advise on listed buildings, also to advise on the building standards of (non-listed) structures that require a permit (Article 17.9(1) in conjunction with Article 16.15a(c)(2) of the Act in conjunction with  Article 4.22(1)(b) of the Environmental and Planning Decree). 

When adopting new building regulations in the final part of the environmental plan, it is important that, unlike now, the assessment of the appearance of a structure may relate only to the design, dimensions, and use of materials and colours, and no longer to the placement of a structure. As is currently the case, the inclusion of rules determining which structures are subject to reasonable aesthetics requirements is not mandatory (Article 4.19 of the Act). However, insofar as plan rules included in the environmental plan that relate – in a preventive or repressive sense – to the assessment of building standards contain (insufficiently objectified and specified) open standards that require further explanation, the municipal council must adopt policy rules (building standards memorandum) to further elaborate those standards (Article 4.19 of the Act). The environmental plan may then provide that a standards committee may advise the competent authority on the appearance of structures. 

Permit-exempt environmental plan activity

Some structures are exempt from the environmental plan activity permit requirement, even if they are not in accordance with the environmental plan, so that they can be realised without a permit. The legislature has included in Article 2.29 of the Building Environment Decree a list of (spatially) environmental plan activity permit-exempt activities that always remain permit-exempt. When the Act enters into force on 1 January 2024, the legislature has opted to use the list of permit-exempt construction activities that applied under the Environmental Permitting (General Provisions) Act, set out in Articles 2 and 3, Annex 2, to the Living Environment Law Decree. In Article 22.36 and Article 22.27 of the Living Environment Law Decree, a number of other environmental plan activity permit-exempt activities cases are set out, which are as close as possible to the spatial permit-exempt cases under the Environmental Permitting (General Provisions) Act. To be clear: municipal councils may therefore make the permit-exempt cases listed only in the Dowry subject to a permit requirement under the environmental plan construction activity in the environmental plan if they so wish.

Formal and procedural aspects of environmental plan activity  

Unless otherwise provided, the Municipal Executive is authorised to decide on an application for an environmental permit for a construction activity (Article 5.8 of the Act). The preparation of that decision is subject to the regular preparation procedure (Article 16.62 of the Act) with a decision period of, in principle, eight weeks, unless, under Article 16.65 of the Act, the uniform public preparation procedure is applied. Unlike the Environmental Permitting (General Provisions) Act, the Act provides that failure to decide on the application in a timely manner in no event leads to an environmental permit by operation of law; the legislature has deliberately removed the lex silencio positivo (automatic issue of a permit) from environmental law (Article  16.64(4) of the Act). To replace the 'declaration of no objections' (within the meaning of Article 6.5(3) of the Living Environment Law Decree), the municipal council has a 'binding advisory right' in certain circumstances in the case of a construction activity not covered by the environmental plan (Article 16.15b of the Act in conjunction with Article 16.15a(1)(1) of the Act). This is the case if the municipal council has designated cases to which this advisory right applies (Article 16.15 of the Act). In those cases, the Municipal Executive must not only seek advice from the municipal council before making a decision, but must also decide on the application for the environmental plan activity not covered by the environmental plan in accordance with that advice. Finally, a participation and consultation obligation applies under Article 16.55(7) of the Act in conjunction with Article 7.4 of the Environmental Regulations: the municipal council may designate activities in respect of which the initiator of a construction activity must state, when submitting the permit application, in what manner citizens, companies, civil organisations and administrative bodies have been involved in the preparation of the application and what the results have been. 

Construction activity: permit-exempt and non-permit-exempt... 

As stated above, the Act distinguishes the technical construction activity in addition to the spatial environment plan activity. In answering the question whether an initiator who wants to implement a building plan needs an environmental permit for the construction activity, a different assessment framework applies than for the environmental plan activity.

In principle, a construction activity (technical or other) is permit-exempt, unless the activity is designated in Article 2.25-2.27 of the Building Environment Decree as requiring a permit (Article 5.1(2)(a) of the Act). If an activity is permit-exempt, a building must (still) comply with the building regulations (imposed with a view to safety, health, usability and sustainability) of Chapters 4 and 5 of the Building Environment Decree, but the activity is not subject to a preventive structural test to be carried out by the competent authority. The latter does apply, however, in the case of a construction activity that requires a permit. 

... and permit-exempt with a notification requirement for structures in consequence class 1 

The situation is different for structures in consequence class 1 (within the meaning of Article 2.17 in conjunction with Article 2.27(1), opening lines and |(a) , of the Building Environment Decree). No permit requirement applies to structures in this category, but a notification requirement does apply: both the start of construction and the intended use of the completed structure must be notified to the competent authority in a timely manner (Article 2.21(1) of the Building Environment Decree). The notification requirement is related to the fact that structures in consequence class 1 – which includes simple structures, such as ground-level houses, simple commercial buildings (no more than two floors) and small infrastructure works – will fall under the new system of quality assurance for construction as from 1 January 2024. A separate blog will soon by published on that subject. Within that new system, as is the case with the permit-exempt construction activity, the competent authority does not preventively assess whether the paper construction plan meets the structural requirements to be imposed on it, but the principal of the construction plan must engage a (private) quality assurance agency that assesses during and immediately after completion of the construction work whether the completed building meets the structural requirements under the Building Environment Decree. In a subsequent blog post, we will discuss in more detail the new quality assurance system that will take effect at the same time as the Act. 

The ‘limitative-imperative’ system of the Act also applies to the technical construction activity: the requested environmental permit must be granted if it is plausible that the construction activity meets the requirements of Chapter 4 (new construction) or 5 (refurbishment) and Article 7.1 of the Building Environment Decree. As for the environmental plan activity, the decision on the application is prepared using the regular procedure, the decision takes effect the day after publication, and the decision may be appealed separately. 

Transitional law governing application for environmental permit for technical construction or environmental plan construction activity

The answer to the question whether the old law (the Environmental Permitting (General Provisions) Act and the zoning plan, etc.) or the new law (the Act and the relevant decrees) applies depends on the date of submission of an application for an environmental permit for a construction activity. If an application for an environmental permit for a construction activity is submitted before 1 January 2024, the old law will continue to apply until the decision to grant or refuse that environmental permit becomes irrevocable. If that application is submitted on or after 1 January 2024, the new law will apply. Materially, the difference will not be so great in many cases, because the Dowry ensures that most of the rules in the Environmental Permitting (General Provisions) Act on environmental permits for construction activities will also materially apply (perhaps temporarily) on 1 January 2024.

Conclusion

This post is part of the Environment and Planning Act blog series. An overview of all the blogs in this blog series can be found here. More information on the background and creation of the Environment and Planning Act can be found on our webpage www.my.stibbe.com/mystibbe/pgo. Our webpage includes the consolidated version of the Environment and Planning Act, where all the articles of the Act are provided with a relevant explanation based on the legislative history.