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  • Public law
  • 16-05-2017

Circular construction – a derivative of the circular economy – is trending.

The Netherlands Enterprise Agency [Rijksdienst voor Ondernemend Nederland] (‘RVO’) defines circular construction as making optimum use, and maximum reuse, of raw materials. This reduces environmental impact, for example, by extending building life, closing raw material chains, and reducing CO2 emissions.

In practice, we have noticed that local governments are prepared to encourage circular construction. In certain cases, they have even expressed a wish to make circular construction mandatory. The future Dutch Environment and Planning Act [Omgevingswet] (‘the Act’) will provide more ways to effect this than the current planning-related legal framework, since the social goals listed in Section 1.3 of the Act (such as maintaining a safe and healthy physical living environment and an effective level of environmental quality) explicitly encourage sustainable development. In the context of the Act, sustainable development is defined as 'development that meets the needs of the current generation without jeopardising the possibilities for future generations to meet their own needs'. Which instruments in the Act contribute to stimulating circular construction?
The Dutch Structures (Living Environment) Decree [Besluit bouwwerken leefomgeving] (‘the Decree’)
In contrast to the current Buildings Decree 2012 [Bouwbesluit 2012], the intention is to use the Decree as of now as a foundation for imposing requirements on the energy-efficiency and environmental-performance scores awarded in the construction industry (Articles 4.155 and 4.165 of the Decree). This will improve the sustainability of houses, apartment buildings, and office buildings built in the future because the environmental impact of these structures will be reduced. An important new opportunity that is not laid down in the Dutch Housing Act [Woningwet] will be the possibility for local governments to insert customised energy-efficiency and sustainable construction rules in regional environment plans by requiring suitable materials to be used (Articles 4.156 and 4.166 of the Decree). This will thus make the requirements included in the Decree more stringent. In that sense, it is an exception to the rule that the Decree is intended to be exhaustive (see Section 23.7 of the Act) and offers opportunities for circular construction.
Furthermore, pursuant to the Buildings Decree 2012, the competent authority may, after issuing a demolition notification for example, impose additional conditions regarding separating demolition waste into fractions and keeping those fractions separate. The goal in this respect would be to enable the demolition waste to be recycled. We wonder whether the term ‘fractions’ might also be interpreted to mean recycling larger sections of buildings. This would be consistent with the principle of striving to be able to reuse these sections for other structures. In our view, the legislature has not been clear on this point. This rule can be found, unchanged, in Article 7.15, et seq., of the Decree. The Parliamentary history of the Decree again emphasises that, pursuant to the European Waste Framework Directive, as much waste should be recycled as possible, which is also consistent with striving to achieve a circular economy. Optimal reuse is top priority in this context. Although the legislature is well aware of the value of a competent authority being able to impose additional requirements on the processing of demolition waste, the Act is also not particularly clear on how this concept should be interpreted. From the standpoint of legal certainty, it would be useful for the legislature to provide clarity on this point.
The experimental provision
The Act contains an experimental provision (Section 23.3) that is intended to continue building on the current Section 2.4 of the Dutch Crisis and Recovery Act [Crisis- en herstelwet]. Given its link to the broad objectives set forth in Section 1.3 of the Act, the experimental provision offers possibilities for innovative experiments from a broader perspective than its corresponding provision in the Crisis and Recovery Act. In experimental cases, deviations may be made from all sorts of statutory rules, including those laid down in the Act itself or in the Decree. The above shows that an experiment need not be applied to require builders to make responsible use of materials, because the Decree already contains an exception for that purpose. For farther-reaching requirements, such as imposing technical requirements in the context of flexible construction or other relevant technical requirements not provided for in the Decree, the experiment may have additional significance since, generally speaking, the Decree, just as the Buildings Decree 2012, is intended to be exhaustive and it cannot be deviated from in individual cases.
Environmental values
The regional environment plan offers effective opportunities to impose sustainability requirements, and thus circular construction, at local level with regard to certain areas and buildings. After all, activities can also be regulated in a regional environment plan even separately from a functional division. Conditions and requirements can both be linked to a function (intended use) or included as a separate rule. We can imagine that, from the perspective of sustainability in the context of circular construction, attempts will be made to set objectifiable and measurable goals that can be achieved by including environmental values in a regional surroundings plan, whether or not this is linked to particular areas or encompassed by a programme.
It follows from the above that the legislature is creating clear opportunities to strive for a more sustainable society. We assume that, based on this, the Act will be regularly checked to ensure that it keeps up with the times. The Cabinet itself has indicated that it will be making its fullest efforts to promoting circular entrepreneurship with a nationwide programme intended to develop a circular economy by 2050. To achieve this, companies will have to be using at least 50% less minerals, fossil-based raw materials, and metals by 2030. More information on these topics can be found on the RVO website.

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