FAQ: environmental permit - decision period, entry into force and irrevocability

It is not always clear which preparation procedure applies, how long the procedure will take, and when the permit can be used or can become irrevocable. A previous Stibbe blog post in the FAQ series (dated 1 May 2017) covers the two different preparation procedures for an environmental permit application and explained in which circumstances each procedure applies. This blog supplements the earlier post with a detailed discussion of the decision period, the entry into force and the irrevocability of an environmental permit. We will answer the following questions:

1. Within what period of time does an competent authority have to decide on an application for an environmental permit?
2. When does an environmental permit enter into force?
3. When is an environmental permit irrevocable?

At the bottom of this FAQ there are two timelines which provide a quick overview of the procedures and deadlines discussed below.

Decision period

If a private individual or company wishes to undertake an activity for which a permit is required under the Wabo, an application must be submitted via the Wabo Service Counter for environmental and planning permits (OLO). The decision period starts from the moment the application is submitted. However, if the application does not contain all the information required by law, the competent authority suspends the decision period (Article 4:2 of the General Administrative Law Act) (Algemene wet bestuursrecht, hereinafter: Awb). In that case, the competent authority must provide the applicant with a period for supplementing the application, and the decision period will only start running again once the application has been completed with all the necessary information or when the period for completing the application has expired with the application incomplete (Article 4:5(1) in conjunction with 4:15(1) Awb). The decision period may also be suspended at the request of the applicant or at the request of the competent authority with the applicant's consent (Article 4:15(2) Awb). The decision period differs per preparation procedure, of which there are two: the regular preparation procedure and the extensive preparation procedure.

Regular preparation procedure

Application

The main rule is that the regular preparation procedure applies unless the extensive preparation procedure was declared applicable (Article 3.7(1) Wabo). The regular preparation procedure applies, for example, to the environmental permit for construction that complies with the zoning plan.

Decision period

For applications for an environmental permit subject to the regular preparation procedure, the competent authority must decide upon the application within eight weeks (Article 3.9(1) Wabo). The competent authority may extend the decision period once by a maximum of six weeks (Article 3.9(2) Wabo). Under certain circumstances, the competent authority must postpone a decision on the application, for example, when a draft zoning plan for a particular area has been published for public inspection prior to the submission of the application. In such a case, the decision on the application will be taken at a later stage. When the competent authority must postpone a decision, and how long the postponement lasts, is regulated in Articles 3.3, 3.4 and 3.5 Wabo.

Extensive preparation procedure

Application

The extensive preparation procedure applies if such is explicitly provided for by law. The main rules of the extensive preparation procedure are laid down in Article 3.4 Awb. The various activities for which the extensive preparation procedure applies are listed in Article 3.10 Wabo. Common activities to which this procedure applies include the establishment, modification or operation of an establishment (also referred to as an environmental permit) (Article 3.10(1)(c) in conjunction with Article 2.1(1)(e) Wabo) and its use in conflict with the zoning plan in so far as it concerns an outside-scope departure from the zoning plan (Article 3.10(1)(a) in conjunction with Article 2.1(1)(c) Wabo, in conjunction with Article 2.12(1)(a) under 3° Wabo). The extensive preparation procedure also applies when a certificate of no objection is required from another competent authority (Article 3(10)(1)(e) in conjunction with Article 2.27 Wabo).

Exceptions

The competent authority may decide that the extensive procedure does not apply. However, this is only possible if the performance of the activity is required in the short term due to unusual circumstances, or if the implementation of a treaty or decision binding on the Netherlands requires such. These situations rarely occur. In practice, the competent authority often draws up policy concerning this exception.

Another exception to the application of the extensive preparation procedure is the situation where an application for an environmental permit for the change of an establishment (which has normally been prepared with the extensive procedure) does not lead to other or adverse effects on the environment than those permitted under the current environmental permit (Article 3:10(3) Wabo). This is also referred to as an environmentally neutral change.

Decision period

If the extensive preparation procedure applies, a decision period of six months applies (Article 3:18 Awb). This procedure takes longer because, unlike the regular procedure, the competent authority must first take a draft decision before it can take a final decision. The draft decision will be made available for public inspection (Article 3:11 Awb), giving everyone the opportunity to submit an view on the draft (Article 3:15(2) Awb in conjunction with Article 3.12(5) Wabo). The period for this is six weeks (Article 3:16 Awb). In this way, everyone has a say in the granting of permits. The applicant for the environmental permit will (where appropriate) be given the opportunity to respond to the views expressed during this inspection period. All of this is done within the six-month period, after which the competent authority must take a final decision, taking account of the views expressed. The competent authority may extend the decision period once by a maximum of six weeks (Article 3.12(8) Wabo). However, the requirements for extension are stricter than in the regular preparation procedure. Extension is only possible if the subject is complex or controversial, the extension will take place within eight weeks after the application has been received, and before a draft decision has been made available for inspection (Article 3:18(2) Awb).

Entry into force

In principle, a decision on the application follows the decision period, and is announced by the competent authority. However, on occasion, the competent authority does not decide on an application, or does not do so in time. The applicant will not be left empty-handed. Certain permits may be granted by operation of law; more information can be found at FAQ concerning the lex silencio positivo. If this option is unavailable, there is another solution for the applicant, namely the penalty payment in the event of a decision on an application not being made in time (Article 4:17 Awb). Under this option, after notice of default by the applicant, the competent authority will forfeit to the applicant a penalty payment for each day of default, up to a maximum of 42 days.

If the competent authority takes a decision within the allocated time, the environmental permit generally enters into force the day after its publication (Article 6.1(1) Wabo). This is the case for environmental permits for construction. For many environmental permits, however, a period of six weeks applies after which the environmental permit will enter into effect (Article 6.1(2) Wabo). This is the case for the following environmental permits:

• Environmental permit for the execution of a work, not being a building, or activities (Article 2.1(1)(b) Wabo)
• Environmental permit for the demolition, disturbance, moving or alteration in any way of a nationally listed building (Article 2.1(1)(f) Wabo)
• Environmental permit for the demolition of a building, in an urban or village conservation area (Article 2.1(1)(h) Wabo) or in cases where this is stipulated in the zoning plan, management bylaw or preliminary planning decision (Article 2.1(1)(g) Wabo)
• An environmental permit subject to the extensive preparation procedure.

The reason the above-mentioned environmental permits only come into effect after six weeks is that these activities often lead to irreversible consequences. If the permit holder were allowed to make use of the permit immediately, objection or appeal would be rendered practically meaningless in many cases. This six-week period includes the objection, or in some cases, the appeal period (Article 6:7 Awb). In principle, an interested party may object to the environmental permit (Article 7:1(1) Awb). However, if the extensive preparation procedure applies, the possibility for objection is excluded, replaced by an appeal directly to the administrative courts (Article 7:1(1)(d) Awb). The environmental permit will enter into force the day after the expiry of this objection or appeal period. The permit only becomes usable from this point onwards. Until the permit becomes irrevocable, use is at one's own risk; after an objection or appeal, there is still a chance that the permit may be revoked or annulled.

Exception: in the case of a preliminary injunction

An exception to the entry into force of the environmental permit applies if a request for a preliminary injunction is submitted to the administrative court during the objection period (in the case of the regular procedure) or the appeal period (in the case of the extensive procedure). When an application for a preliminary injunction is made, the decision granting a permit will not take effect until a decision has been taken on the application for a preliminary injunction (Article 6.1(3) Wabo). The request for a preliminary injunction, therefore, postpones the entry into force of the environmental permit. The entry into force of the environmental permit then depends on the decision of the court in preliminary relief proceedings. If the court in preliminary relief proceedings grants the request for a preliminary injunction - aimed at suspending the functioning of the environmental permit - the environmental permit will not enter into force until a decision has been rendered in the main action. It is possible in preliminary relief proceedings to request the court to cancel or amend an injunction granted (Article 8:87(1) Awb).

Of course, it is also possible that an application for a preliminary injunction is submitted after the six-week appeal period. In that case, the environmental permit will already have entered into force, six weeks after its publication. However, the entry into force may be suspended by the judgment of the court in preliminary relief proceedings. This is possible both in cases of application for judicial review and on appeal.

Exception: direct effect

The competent authority may decide that an environmental permit enters into force immediately if it deems this necessary (Article 6.2 Wabo). This does not often happen in practice. That comes as no surprise, given that the law provides for certain exceptions for most environmental permits to directly entry into force.

Irrevocable

No objection or appeal

If no objection has been lodged against an environmental permit prepared in accordance with the regular preparation procedure, or if no appeal has been lodged against an environmental permit prepared in accordance with the extensive preparation procedure, the environmental permit will become irrevocable six weeks after its publication. After those six weeks, the period for objection and appeal has expired and the decision can no longer be challenged. In very rare cases an objection may be delayed in the mail and arrive after the six-week period, even though it was sent on time. In such a case, the objection is considered to be submitted in time, and the permit is not irrevocable.

Objection or appeal has been lodged

If an objection or appeal has been lodged against the environmental permit, the permit only becomes irrevocable after the final decision. The final decision may be the decision on objection (if no appeal is lodged afterwards) or the decision of the administrative court following an application for judicial review or appeal. The legal proceedings and timeline depend on the environmental permit and the procedure followed.

For environmental permits prepared in accordance with the regular preparation procedure, an interested party must first submit an objection, for which the deadline is six weeks. The competent authority then has six weeks to decide on an objection, or 12 weeks if a review committee deals with the objection. Incidentally, this period may be extended by six weeks and, subject to certain conditions, postponed further (Article 7:10(3) and (4) Awb). This is followed by the decision on the objection, against which the interested party can appeal, again within a period of six weeks (Article 6:7 Awb). Court proceedings may last a year or a little longer. The parties to the dispute may appeal the decision to the Administrative Jurisdiction Division of the Council of State (ABRvS), which again may take up to one year. The bottom line is that it can take more than two years before a final decision is made, and the permit becomes irrevocable. Where the Crisis and Recovery Act applies, this period may be shorter because a special accelerated procedure scheme applies.

If an environmental permit has been prepared in accordance with the extensive preparation procedure, there is no objections phase. Following the decision to grant or reject the environmental permit, an interested party that has put forward its views against the draft decision, may lodge an appeal directly, which must be submitted within the six-week period (Article 6:7 Awb). For this environmental permit, too, court proceedings and appeal proceedings can each last up to one year, which means that it can take more than two years before the permit becomes irrevocable.

Conclusion

When applying for an environmental permit, the activity or activities for which the application is submitted determines whether the regular or extensive preparation procedure applies. This in turn affects the decision period, which is longer in the extensive preparation procedure. In addition, the precise time the environmental permit enters into force differs from one activity to another, and objections and appeals have the effect that the permit only becomes irrevocable after a long period of time. It is important for private individuals and companies applying for an environmental permit to be aware of the applicable preparation procedure and deadlines in order to avoid surprises later.

A Dutch translation of this blog can be found here.