NL: Participation under the Environmental Act explained

 

On 1 January 2024, the Environmental Planning Act with related regulations will enter into force after a long delay. The Environment Act is seen as the largest legislative operation since the Constitutional Revision of 1848. The Environmental Act (and related legislation) contains new rules on participation.

On the one hand, participation means that the government must involve citizens, companies, civil society organisations and administrative bodies (hereinafter also referred to as third parties) in the preparation of (certain) regulations concerning the physical living environment. But participation will also play a role in applying for environmental permits. According to the legislator, involving third parties in planning and decision-making will ensure more support and better decision-making. This contribution explains which rules will apply to participation when applying for an environmental permit.

Participation under current law

In current law, when applying for an environmental permit, there is no obligation as a general rule to indicate whether third parties are involved in the initiative. This may be different for an application requesting a derogation from the zoning plan. In that case, municipal policy may include requiring an initiator to make specific efforts aimed at informing local residents and gaining or increasing public support for the desired development. Failure to properly comply with such an obligation may be a reason for the administrative body not to grant an requested environmental permit for deviation from the zoning plan. This may also be a reason not to cooperate in the establishment of a zoning plan.

Participation under the Environmental Act

As of 1 January 2024, it is legally required to indicate when submitting an application for an environmental permit whether third parties are involved in the preparation of the application. This is also known as the 'participation application requirement'. The new rules apply to applications submitted after 31 December 2023.

It is important that participation under the Environmental Act does not oblige to create support for an initiative. The new rules merely require that it be indicated whether third parties are involved in the preparation of the application and – if so – how they are involved and what the results are.

In addition, participation is form-free. The applicant can therefore decide for himself how to organise the participation process. For example, participation can take place by organizing a residents' evening but also by an online meeting. It is the responsibility of the initiator to choose a form appropriate to the initiative in which participation takes place in the preparation of an application.

However, an applicant retains the freedom not to apply participation. The legislator cites as examples that consultation with neighbors may be unnecessary when demolishing an inner wall of a monument, as well as consultation with neighboring companies about a construction activity of a storage shed for pallets in the middle of a large industrial park. The applicant also determines which citizens, companies, civil society organisations and administrative bodies are involved.

If the applicant indicates in his application that participation has not been made, the competent authority may not refuse to process the application for that reason. When preparing an application, it may be tempting to spend as little time as possible on participation, but there is a danger that third parties may be more inclined to challenge an environmental permit at a later stage if they are not involved in the preparation of the application.

When is the participation application requirement not met?

The application requirement will not be met if the initiator does not indicate in his application whether third parties are involved in the preparation of the application. The competent authority can then ask the initiator to complete the missing information. If even then no information is provided, the competent authority may decide to leave the application out of consideration. On the basis of the information on participation, whether or not submitted by the applicant, it is for the competent authority to determine whether it has sufficient data to weigh up the interests involved and to take a careful decision. The competent authority is – and remains – responsible for the decision and its motivation whether or not to grant the environmental permit.

(Possibly) mandatory participation in extra-planned deviations

For applications that do not fit into the environmental plan, mandatory participation may be prescribed. This can vary per municipality and depends on whether a city council has designated cases of off-plan environmental activities for which participation and consultation with third parties is mandatory before an application for an environmental permit can be submitted to B&W.

It is therefore important under the Environmental Planning Act to examine whether the council of the municipality in question has established a participation obligation for this prior to submitting an application for off-plan activities. If this is the case, participation must be made.

 

For further information, please contact:

Ramon Ridder, Partner

Labré advocaten, Amsterdam

e: ramon.ridder@labre.nl

t: +31 20 3052030

 

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