Lessons learned from the Dutch Crisis and Recovery Act for an environmental plan

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

A zoning plan with a broadened scope as predecessor to the environment plan

An environmental plan contains rules on the physical living environment (fysieke leefomgeving) under Article 2.4 of the Act. The physical living environment includes various aspects, such as buildings, water systems and cultural heritage (see Article 1.2(2) of the Act). The plan that was recognised under the former regime of the Spatial Planning Act as the predecessor of the environmental plan (the zoning plan) also contained rules on the physical living environment, but these rules had to serve the purpose of good spatial planning (goede ruimtelijke ordening). The plan rules had to cover spatially relevant aspects (see, for instance, ECLI:NL:RVS:2022:3754, paragraph 10.5). A zoning plan therefore had a more limited scope than the environment plan.

To respond to the possibilities offered by the Act, Article 2.4 of the (former) Crisis and Recovery Act made it possible to deviate from provisions in the Spatial Planning Act and other acts. Article 7c of the Crisis and Recovery Act Implementation Decree (Besluit uitvoering Crisis- en herstelwet) thereby offered the possibility of adopting a zoning plan with a broadened scope. In addition to the rules aimed at good spatial planning, such a zoning plan could also contain rules aimed at (a) achieving and maintaining a safe and healthy physical living environment and good environmental quality; and (b) efficiently managing, using and developing the physical living environment to fulfil social functions. The zoning plan with a broadened scope thus had the same integral area-oriented character as the environment plan.

Besides broadening the substantive rules, Article 7c of the Crisis and Recovery Act Implementation Decree also offered procedural possibilities to deviate from the provisions of the Spatial Planning Act in anticipation of the entry into force of the Act. For instance, the provision created a basis for including a prohibition in a zoning plan to perform an activity without notifying it (paragraph 5) and offered the local council (gemeenteraad) the possibility of delegating the power to adopt parts of the zoning plan to the board of mayor and aldermen (college van burgemeester en wethouders) (paragraph 12). As these possibilities are now also included in the Act – see, for example, Article 4.4(1) of the Act for the prohibition subject to notification and Article 2.8 of the Act for the possibility of delegation – the rulings of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State)(the Division) on application of these possibilities are also relevant under the Act. The judgments of the Division on this topic and several other topics are addressed below.

Prohibition subject to notification

The prohibition on carrying out an activity without a notification was addressed in a ruling by the Division on the ‘Borsels Buiten, 150 kV Ellewoutsdijk, 2018’ zoning plan (ECLI:NL:RVS:2021:1845). The Borssele local council had included a notification requirement in this plan. The establishment of, among other things, a small-scale campsite had to be preceded by a notification to the board of mayor and aldermen. In doing so, extensive conditions had to be met regarding, among other things, its size, appearance in relation to the surroundings and support base. The Division concluded that this regulation violated legal certainty. In the opinion of the Division, it is incompatible with the nature of the instrument of a notification obligation to make the permissibility of an activity dependent on this kind of assessment rules. According to the Division, it is inherent in a notification that there is no further assessment moment. Linked to this, it is unclear what the legal consequence is if the notification contains a substantiation that is insufficient according to the board of mayor and aldermen. In short, a further moment of consideration is not allowed when including a prohibition subject to notification.

Interpretation when exercising a power dependent on policy rules

In an earlier blog post, we discussed in more detail considerations by the Division on the application of policy rules when exercising a power. These considerations were not only pointed out in the context of zoning plans with a wider scope, but also relate to regular zoning plans under the Spatial Planning Act. Indeed, the Dutch General Administrative Law Act (Algemene wet bestuursrecht) also offers the possibility of drawing up policy rules in relation to a power (Article 4:81). The Act therefore no longer contains an explicit provision that the interpretation in the exercise of a power specified in the Act is subject to policy rules (Stb. 2018, 290, p. 103).

The policy rules that are applied in the exercise of a power are mostly a question of legislative interpretation. This means that these policy rules provide an interpretation of a multi-interpretable, abstract criterion laid down in the plan rules. However, policy rules may also be used on the balancing of interests (ECLI:NL:RVS:2020:2004, paragraph 19.2). The policy rules interpreting the law must serve to fulfil an open standard (see, for example, ECLI:NL:RVS:2021:1960, paragraph 5.5), because without an open standard, no interpretation is needed. The application of open standards should not result in the plan itself providing insufficient insight into the construction and possibilities of use within the planning area. It should also be possible to determine whether the plan complies with the law. Legal certainty requires that the open standards applied be sufficiently concrete and objectively delimited. An earlier blog elaborated on the ruling in which the Division came to this opinion (ECLI:NL:RVS:2021:2388, paragraph 9.5). In short, it comes down to the fact that some framing of the open standard is required. This framing should be done by the other plan rules or the plan map. The latter can be done, for example, by defining the area covered by the standard.

Impracticability test

Under Article 3.1.6(1), opening lines and (f), of the (former) Spatial Planning Decree (Besluit ruimtelijke ordening), a zoning plan had to be accompanied by an explanatory memorandum setting out the explanation of the feasibility of the plan. Based on case law, this meant that the question whether a zoning plan provides for an acceptable living and working environment had to include a study of the maximum planning possibilities (see, for example, ECLI:NL:RVS:2021:2177, paragraph 3.3). Under the Act, this is not required (Parliamentary Papers II 2013/2014, 33 962, no. 3, p. 153). Article 7c(9)(a) and 2º of the (former) Crisis and Recovery Act Implementation Decree therefore offered the possibility to deviate from Article 3.1.6(1), opening lines and (f), of the Spatial Planning Decree. The application of this article was at issue in a ruling on the 'Cityplan Heerlen' zoning plan (ECLI:NL:RVS:2023:717, paragraph 10.2). According to the planning rules, various functions, such as services and leisure, were allowed in the 't Loon shopping centre. According to the appellant, the local council had wrongly failed to substantiate the feasibility of these functions. The Division found that the application of Article 7c(9)(a) and 2º of the (former) Crisis and Recovery Act Implementation Decree meant that the local council should only have refrained from acting if the council "should have reasonably foreseen in advance that implementation of this planning scheme was in no way possible". Since the zoning plan offered broad possibilities, there was no reason to believe that this was the case. In short, instead of a feasibility test, the local council merely needed to perform an impracticability test. This will also be the case under the Act.

Delegation to the mayor and the aldermen

The Division requested the State Advocate General to present an opinion on the local council's ability to delegate the adoption of parts of a zoning plan with a broad scope. We previously wrote a blog about this opinion (ECLI:NL:RVS:2022:1109) and the ruling (ECLI:NL:RVS:2022:2394) that followed. It follows from the ruling of the Division that the delegation decree is a generally binding regulation that comes into force only after it is properly published. In the delegation decree, the local council must determine which parts of the plan are assigned to the board of mayor and aldermen to adopt. In the delegation decision, the local council should limit the power of the board of mayor and aldermen sufficiently concretely and objectively, so that, from the point of view of legal certainty, it is clear and identifiable for which parts the board of mayor and aldermen is responsible. Policy rules can also delimit the power, provided that such delimitation is sufficiently concrete and objective to be determined on the basis of the policy rules. Whether this is the case depends on the circumstances of the case.

In 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 a relevant explanation based on the legislative history is provided for all the relevant articles of the law.