New policy rules published: a potential way out for projects hit by Dutch Nitrogen Problem
On 29 May 2019 the Council of State, the highest Dutch administrative court, rendered the Dutch Nitrogen Programme (PAS) in violation of the EU Habitats Directive. As a result around 18,000 construction projects causing nitrogen deposition were effectively halted by the Council of State.
In a joint statement last week all Dutch Provinces announced that they shall recommence issuing permits based on the Nature Conservation Act, based on newly adopted policy rules.
Under the previously applicable PAS-regime developing parties in many situations were able to rely on generic exemptions from permit requirements, or a simple reference to the fact that a project was included in PAS. This is no longer an option. Following the PAS ruling it will have to be determined, on a case-by-case basis, that a specific project will not adversely affect nature conservation areas under the Natura 2000 network. If a developer is able to demonstrate this on the basis of ecological substantiation no nature permit requirement applies. Generally it will however be very difficult to prove this, due to the density of nitrogen-sensitive Natura 2000 areas combined with the existing high nitrogen deposition levels. Especially for more sizeable projects, this means that in most cases consent under the Nature Conservation Act will have to be secured prior to the development of a project (for example when deviating from a zoning plan).
The newly adopted policy rules establish a framework for assessing nature permits if such permits have been applied for based on netting off (salderen) the nitrogen deposition of the relevant project. For the sake of clarity: such ‘netting off’ entails that (i) any increases in nitrogen deposition resulting from a project are set off against (ii) a decrease in nitrogen deposition which is part of the same project (intern salderen), or can be directly attributed to that project (extern salderen), which decrease must at a minimum match the increase of the project.
Under the newly adopted rules the so-called 'Aerius Calculator' has been prescribed as the computational model for calculating nitrogen deposition levels. Compared to the framework under PAS, the new policy rules prescribe a more stringent assessment framework. Amongst others, it should be noted by developers that more strict conditions apply if a developer wants to sett off an increase in nitrogen deposition against an ‘external’ decrease of ntrogen deposition (compared to ‘internal’ decreases which are an integral part of the project itself).
No generic exemptions and/or consents have been included in the new policy rules and, based on current signals, such ‘quick fixes’ (as available under PAS) are not to be expected for some time to come (if at all). It should be noted that four of the Northern Provinces (i.e. Friesland, Drenthe, Overijssel and Gelderland) since last week have overturned their policies again following heavy protests by farmers. The new rules however remain relevant for a larger part of the Netherlands, including the densely populated Randstad area (which area includes the major cities such as Amsterdam, Rotterdam, Utrecht and The Hague).
In light of the above, developing parties can and should assess their projects against the legal conditions under the new policy rules. If applied diligently (and creatively) we would expect this offers a way out from under the Dutch nitrogen problem for many projects.
Jan de HeerSenior associate Attorney at law
Jan de Heer, attorney at law, specializes in general (procedural) administrative law with a specific focus on real estate and energy-related regulatory matters, including the overlapping area between public/private law.T: +31 20 578 52 34 M: +31 6 53 44 83 78 E: firstname.lastname@example.org