Relevant amendments regarding the environmental permit

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

Introduction

Under the Act, new terms make their appearance and old terms disappear. The old zoning plan is the new environmental plan, the establishment has been replaced by the environmentally harmful activity, and the tracébesluit (route decision) has been replaced by the project decision. One of the concepts that has remained unchanged is the environmental permit. That said, a lot is changing for the environmental permit under the Act compared to the old legislation. We address the main amendments in this blog.

No longer inseparable connection in permit application

Under the Act, unlike under the Wet algemene bepalingen omgevingsrecht (Environmental Permitting (General Provisions) Act), it is not mandatory to apply for an environmental permit for different activities that are 'inseparably connected' at the same time. If an applicant undertakes several activities requiring a permit, he has the option to apply for the permits for those activities simultaneously or separately at different times (Article 5.7(1) of the Act). This can be an advantage for the applicant. For example, an applicant can save unnecessary costs by first submitting an application for a deviation from the environmental plan (an 'environmental plan activity' under the Act) and waiting to see if this is possible, before incurring costs for the permit application for the intended construction activity. However, this flexibility also brings risks. More responsibility lies with the applicant to verify that all necessary permits for the activities to be carried out have been applied for and obtained. Administrative bodies also still bear that responsibility: under Article 3:20 of the Algemene wet Bestuursrecht (General Administrative Law Act), an administrative body must facilitate that it notifies an applicant of other decisions to be taken that are necessary for the activities to be carried out.

An exception applies to the freedom of choice to submit permit applications separately: in the case of activities relating to an IPPC installation or Seveso establishment, the environmental permit for environmentally harmful activities and 'water activities' are applied for simultaneously (Article 5.7(4) of the Act). Water activities include water abstraction activities or discharge activities on surface bodies. This simultaneous application obligation is based on the Industrial Emissions Directive (IED), from which the requirement follows to provide for a comprehensive assessment of all environmental impacts of IPPC installations when deciding on a permit application (Parliamentary Papers II, 33 962, no. 3, p. 490). The Seveso Directive covers companies with a similar environmental risk, so the legislature applies this obligation also to Seveso establishments.

Finally, we point out that the general rule for freedom of choice also has another exception. In cases other than those described above, the environmental permit for water activities must, on the contrary, be applied for separately from the permit application for other activities (Article 5.7(2) of the Act in conjunction with Article 10.21 of the Omgevingsbesluit (Environmental and Planning Decree).

Increased use of the regular preparation procedure

Under the Act, the main rule is that the regular preparation procedure applies to the application for an environmental permit (Article 16.62 of the Act). In that case, the decision period (after receipt of the application) is eight weeks, or 12 weeks if consent is required from another administrative body (Article 16.64 of the Act). This decision period can be extended once by a maximum of six weeks.

In designated cases, an exception applies to the main rule and the extensive preparation procedure (also known as the uniform public preparation procedure, included in Article 3.4 of the General Administrative Law Act). In that case, a decision period of six months (after the application) applies, within which a draft decision is made available for inspection by others. This period can also be extended (within eight weeks of receiving the application, with a reasonable time limit). These cases are listed in Article 10.24 of the Environmental and Planning Decree. Briefly stated, they are national monument activities insofar as they concern an archaeological monument, environmentally burdensome activities of IPPC installations or Seveso establishments, and designated installations in the energy industry (heavier industry), certain discharge activities, dumping at sea, Natura 2000 activities, and certain water activities related to IPPC installations or Seveso establishments.

It follows from the above that certain activities are subject to the regular preparatory procedure, where under the old legislation this was the extensive preparatory procedure. Environmental permits for environmentally burdensome activities that do not involve an IPPC installation, Seveso establishment or heavier industry are prepared by using the regular procedure (provided this does not require a milieu effect rapportage (environment impact assessment). Under the old legislation, the extensive preparation procedure always applied to the establishment and operation of an establishment.

The extensive procedure does not apply to amendments to an environmental permit if, in the opinion of the competent authority, the amendment has no significant adverse effects on health or the environment. The Explanatory Memorandum to the Environmental and Planning Decree states that this is in line with the IED and the Aarhus Convention, which state that an extensive procedure is required only for 'significant changes' and 'significant effects', respectively (Stb. 2018, 290, p. 179). Although the IED contains a definition of 'significant changes', there remains room for discussion as to when changes are or are not likely to cause significant adverse effects. We expect that this could lead to proceedings on whether or not to apply the extensive preparation procedure in those cases. The permit applicant plays an important role in avoiding such risks. Under Article 16.65(1)(b) of the Act, the extensive preparation procedure can also be applied 'at the request or with the consent of the applicant'.

Fewer activities requiring permits

The legislature's aim is to have fewer permit obligations under the Act. This is reflected in Article 5.1 of the Act, which states for a limited number of activities that a permit is compulsory unless exempted by a general administrative measure (subsection 1), and for a large number of activities that a permit is compulsory to the extent designated by a general administrative measure (subsection 2). Subsection 2 includes the construction activity and the environmentally harmful activity. Both activities are subject to fewer permit obligations under the Act. We will discuss the construction activity separately below.

The Besluit activiteiten leefomgeving (Living Environment Activities Decree) designates environmentally harmful activities for which an environmental permit is required. It also includes designated environmentally harmful activities to which no permit obligation applies, but only the general rules in Chapter 4 or 5 of the Living Environment Activities Decree. Finally, there are also environmentally harmful activities not designated in the Living Environment Activities Decree. These activities are subject to the rules in the environmental plan, which may also include a permit obligation. This is a change from the old law, where an establishment must always have an environmental permit for the operation and establishment of an establishment (also known as the environmental permit). Under the Act, environmentally harmful activities that a facility performs but that are not designated as requiring a permit are no longer covered by the environmental permit. Note that for certain main activities, the Living Environment Activities Decree provides that other environmentally harmful activities that are performed at the same location and functionally support that activity also fall under the permit obligation. This applies, for instance, to the operation of an IPPC installation. In the Explanatory Memorandum to the Living Environment Activities Decree, the legislature notes that 'functionally supporting' should be understood broadly: it also includes the canteen at a company operating an IPPC installation (Stb, 2018, 293, p. 808). This means that little will change for IPPC installations compared to the old legislation: the environmental permit will still cover almost all environmentally burdensome activities, as was the case under the environmental permit for establishing an establishment.

Building permit split (bouwknip)

Under the Act, the environmental permit for construction is split into an environmental permit for the environmental plan activity (spatial component) and an environmental permit for the construction activity (technical component). This is also known as the bouwknip.

An environmental plan activity is an activity for which the environmental plan stipulates that the activity is permitted, but for which an environmental permit is required (environmental plan activity covered by the environmental plan) or an activity that is not permitted and for which an environmental permit is required (environmental plan activity not covered by the environmental plan). It follows from the environmental plan whether a structure is allowed at a certain location and whether this requires an environmental permit. It is therefore up to municipalities to determine this (see the blog in this series on the environmental plan). Article 2.29 of the Besluit bouwwerken leefomgeving (Building Environment Decree) lists the exceptions to this permit obligation that have been established at the national level and apply to all municipalities: for example, an environmental permit (for an environmental plan activity) is never required for a dormer of a certain size or a fence of a maximum of 1 metre. Under the old legislation, these exceptions were included in Annex 2 to the Besluit omgevingsrecht (Living Environment Law Decree).

Besides the question of whether a permit is required for an environmental plan activity to realise a structure at a certain location, there is also the question of whether a permit is required to build the structure: the construction activity. The construction activities for which a permit is required are listed in Articles 2.25 and 2.26 of the Building Environment Decree. In particular, these concern structures of a certain size (including the requirement that the structure be higher than 5 metres). Article 2.27 of the Building Environment Decree contains a list of exceptions: these structures do not require an environmental permit for a building activity. Among other things, this article refers to buildings with consequence class 1 (included in Article 2.17 of the Building Environment Decree). These are buildings that fall under the quality assurance system: for these buildings, an environmental permit is no longer required for the building activity, but a notification obligation applies and the building is inspected under the Wet kwaliteitsborging (Quality Assurance Act). We will discuss this in more detail in a later blog in this series. This includes ground-level single-family houses and commercial buildings with a maximum of two stores. Under the old system, such buildings could not be built without an environmental permit.

The legislature separates the technical part from the spatial part of the permit to allow an applicant to apply for the environmental permit for construction in phases. This can simplify the competent authority's assessment per permit application (Parliamentary Papers II, 33 962, no. 3, p. 165). If an applicant first submits an application for an environmental plan activity by means of which he wishes to deviate from the environmental plan, for example, the competent authority will assess whether the deviation activity is permitted, without assessing the application against all building regulations. This will only come into play with the application for an environmental plan activity.

No authorisation by operation of law

Under the Act, it is no longer possible to obtain a permit van rechtswege (by operation of law). The provision for the positive fictitious decision in the event of late decisions (lex silencio positivo) from the General Administrative Law Act is expressly excluded (Article 16.64 of the Act). The legislature emphasises in the Explanatory Memorandum that this provision, in conjunction with other new developments under the Act, creates complications (Parliamentary Papers II, 33 962, no. 3, p. 227). If an applicant can obtain a permit by operation of law for deviating from the environmental plan, this clashes with the balanced allocation of functions to locations envisaged by the legislature under the Act. Another problem: under the Act, more permits are prepared using the regular preparation procedure. This includes environmental permits on environmentally harmful activities, for which a prior assessment of the application is mandatory under European law. The provision of lex silencio positivo conflicts with this, as a result of which an extensive preparation procedure would still have to be followed for those permits, which is exactly what the legislature wants to limit. For the sake of uniformity, the legislature therefore opts to declare provision of the lex silencio positivo not applicable to environmental permit applications at all. For the building practice, this is a significant change. It is noteworthy that the permit granted by operation of law once started in environmental law (when applying for a building permit), and is now the first to be abolished again in environmental law.

Other period for entry into force of permit

Under the Act, the main rule is that an environmental permit prepared using the regular procedure enters into force the day after it is announced (Article 16.79 of the Act). This is in line with the entry into force under the old legislation. What is new is that, in certain cases, the competent authority must include in the permit that it will only enter into force after four weeks. This is the case if the permit relates to an activity that may lead to a change in an existing situation that cannot be restored and the rules on granting the environmental permit aim to protect that existing situation. Under the old legislation, this was six weeks by operation of law for the environmental permits designated under the Environmental Permitting (General Provisions) Act. If a request for a preliminary injunction is filed during that four-week period, the permit will not enter into force until this request is decided. The Act follows the old legislation in this respect.

A change also applies to environmental permits prepared using the extended procedure. Under the Environmental Permitting (General Provisions) Act, those permits enter into force the day after the decision is made available for inspection, i.e. after the appeal period. The main rule under the Act for these permits is entry into force the day after the decision is made available for inspection. Again, the competent authority must include in permits a delayed entry into force of four weeks for cases that are, in short, irreversible. These cases, both for permits prepared using the regular procedure and the extensive procedure, can be further designated by a general administrative measure (Environment and Planning Decree). This has not yet been done. We can therefore imagine that including or not including this delayed entry into force will lead to discussions in practice.

Financial assurance in the licence

The Act states that a general administrative measure may designate cases in which the competent authority can or must include provisions on financial security in the single permit (Article 13.5 of the Act). These provisions may relate to compliance with obligations or to cover liability for damage to the physical living environment as a result of the activity. Under the old legislation, in certain cases it was already possible for the competent authority to include provisions in the permit on financial security (under the Environmental Permitting (General Provisions) Act). That power changes into an obligation under the Act for many cases. These changes were chosen because as a result of bankruptcies of large chemical companies, the government had to bear the costs of cleaning up environmental damage (Stb. 2022, 359, p. 5). For waste treatment activities, the competent authority under the Act has the power to include provisions on financial securities in the permit, where under the old legislation it could not do so at all.

The cases in which these provisions can be included in the environmental permit are designated in Article 8.5 of the Environmental and Planning Decree. In sum, these are water activities, excavation activities and certain activities involving waste water or waste. Cases in which provisions on financial security must be included in the single permit are designated in Article 8.6 of the Environmental and Planning Decree. The legislature refers to these as 'major risk companies'. These include Seveso establishments, IPPC installations, the dumping of waste or dredged material in a landfill, and the storage of fireworks.

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.