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  • Public law
  • June 12, 2019

Many plans and projects are now faced with the question of how to interpret the “PAS” ruling from the legal point of view. After all, when investigating the acceptability of a plan or project, reasons will need to be advanced as to why it does not involve a decision which – individually or in combination with other plans or projects – is likely to have significant consequences for a Natura 2000 site. That can only be determined if it has been ascertained, on the basis of an appropriate assessment, that the plan will not adversely affect the natural features of such a site (Sections 2.7(1) and 2.8(3) of the (Dutch) Nature Conservation Act [Wet natuurbescherming, “Wnb”]).

The PAS provided for nature remediation measures in nature conservation areas within the Natura 2000 network that are overloaded with nitrogen. Within that framework, the programme also created scope for the development of new activities that cause nitrogen deposition. This was based on an appropriate assessment, which the Habitats Directive makes obligatory for projects likely to have a significant negative impact on a Natura 2000 site. This was invoked when granting consent for projects. The PAS ruling has found that the assessment on which the PAS is based does not meet the requirements set for that purpose. That means that permits and other consent decisions could not be granted with a reference to the appropriate assessment pursuant to the PAS. Permits based on the PAS which have been appealed against will be revoked. Current permit applications and permits that have been objected to can no longer be based on the PAS. The ruling does not affect permits that have already become irrevocable and can therefore no longer be challenged in court.

Under the PAS, activities below the limit or threshold value or at a certain distance were exempt from the permit requirement. Notification has already been given for some of those activities. In its ruling, the Administrative Jurisdiction Division of the Council of State (the “Council of State”) found that these values had never been legally valid because the appropriate assessment was not in accordance with the Habitats Directive. In a letter to the President of the Dutch House of Representatives (11 June 2019, DGNVLG-NP/19140219), the Minister stated that, as a result of the ruling, a consent decision therefore still needs to be granted for all activities registered under the exemption (more than 3300 of them).

How should one proceed when renewing a statement of reasons for a plan or a project – for example, a zoning plan or an environmental permit – as regards deviating from a zoning plan? See our checklist below.

If you have any questions, please contact:
Anne-Marie.Klijn@NautaDutilh.com
Tim.Grundmeijer@NautaDutilh.com

Council of State (ECLI:NL:RVS:2019:1764)

The Council of State does not explicitly state that it is possible to link up again with what applied regarding the PAS, but it arrives at the following more general phrasing:
 

1. The appropriate assessment of the consequences of a plan or project for a Natura 2000 site means that (i) on the basis of the best available scientific knowledge (ii) all aspects of the plan or project concerned (iii) which, on their own (iv) or in combination with other plans or projects, (v) may jeopardise the site’s conservation objectives, must be identified.

2. Based on that appropriate assessment, the competent authority must have ascertained that the activity has no adverse effects on the natural features of the area concerned.

3. This is considered to have been ascertained if there is no reasonable scientific doubt that there are no harmful effects.

Ground 17.5

 

Minister of Agriculture, Nature and Food Quality (Letter 11 June 2019, DGNVLG-NP /19140219))

According to the Minister, the following conditions apply to the granting of consent:

  1. Individual consent can be granted on the basis of ecological substantiation showing that the natural features of the Natura 2000 site concerned will not be negatively affected, despite an increase in nitrogen deposition by the project concerned.
  2. If there is an adverse effect, then measures can be taken. Those measures must be such as to ensure that deposition of nitrogen does not increase in Natura 2000 areas that are sensitive to such deposition. This can be effectuated by means of measures linked to the activity itself (internal set-off) or, subject to strict conditions, through setting off against the effects of discontinuing or restricting other activities (external setoff).

The Council of State’s remarks on the benefits of measures and autonomous developments

The Council of State deals at length with the extent to which account may be taken of the benefits of measures and autonomous developments. In that connection, it makes the following distinctions:

(i)   conservation and appropriate measures (remediation measures);
(ii)  autonomous developments;
(iii) protective measures.

Generic requirements

  • The expected benefits must already have been established at the time of the appropriate assessment (the appropriate assessment must include definitive findings regarding the expected benefits and effectiveness of the measures or autonomous development).
Ground 18 (4)
  • The expected benefits of measures will not have been established if, at the time of the appropriate assessment, the manner in which the benefits will be achieved has not yet been worked out, or the level of scientific knowledge does not allow those benefits to be identified or quantified with certainty.
Ground 18 (6 en 9)
  • At the time of the appropriate assessment, it must be guaranteed that the measures and autonomous developments will produce results before the plan or project has negative consequences.
Ground 18 (10)
  • A measure cannot be included in the appropriate assessment if the usefulness of that measure is the subject of scientific discussion.
Ground 18 (11)
  • The fact that an appropriate assessment must contain definitive findings means that certainty as to whether certain benefits will manifest themselves must not be dependent on monitoring.
Ground 18 (12)
  • The appropriate assessment must consider not only the likely positive effects of measures and autonomous developments but also any known or potential adverse effects.
Ground 18 (13)

 

(i) Conservation measures and appropriate measures (remediation measures)

  • The measures must already have been implemented at the time of the appropriate assessment.
Ground 18(5); 27.3
  • NB: Monitoring may be an appropriate measure, but the fact that the implementation and impact of measures included in an appropriate assessment are monitored may not be deemed significant regarding whether the measures have already been established at the time of the appropriate assessment.
Ground 20.15

 

(ii) Autonomous developments

  • The expected benefits do not count as having been established if, at the time of the appropriate assessment, the measures have not yet been fully implemented and those expected benefits depend on a development or response in nature, in the ecological system or in an animal species, such as the creation of new habitat types, habitats, or foraging areas or the enhancement of existing ones.
  • This applies in full if a plan or project is subject to a condition that the resulting adverse impact on natural features may only take place after the measures or autonomous developments referred to above have been implemented and have had an effect.
Ground 18 (7)
  • The developments must not be based on proposed policies;
  • It must be certain that an observed downward trend will continue;
  • The expected benefits of the developments must be identifiable with the required certainty and have been quantified at hexagon level; and
  • It must be guaranteed that the allocation of deposition space derived from the developments does not take place before the reduction in deposition has manifested itself.
Ground 27.5
  • NB: There is no relationship between an autonomous reduction and the emission-causing activity. There is therefore only scope for allocation of development space derived from the autonomous reduction if that reduction has definitely occurred at the time when the activities for which development space is allocated will start to cause emissions.
Ground 21

 

(iii) Protective measures

  • It must be sufficiently certain that a measure will actually contribute to preventing an adverse impact on the natural features of the area concerned and guarantees that there is no reasonable doubt that the plan or project in question will not adversely affect the natural features of that area.
Ground 18 (3)
  • The expected benefits do not count as having been established if, at the time of the appropriate assessment, the measures have not yet been fully implemented and those expected benefits depend on a development or response in nature, in the ecological system or in an animal species, such as the creation of new habitat types, habitats, or foraging areas or the enhancement of existing ones.
  • This applies in full if a plan or project is subject to a condition that the resulting adverse effect on natural features may only take place after the measures or autonomous developments referred to above have been implemented and have had an effect.
Ground 18 (7)
  • NB: Protective (technical) measures that are functionally linked to implementation of the plan or project – such as a standstill function or noise barrier – need not already have been fully implemented at the time of the appropriate assessment, but the expected benefits of such protective measures can only be included in the appropriate assessment if those measures have been established.
Ground 18 (8)

 

The Council of State’s remarks on the consequences for zoning plans

When does a zoning plan have significant effects and must be assessed appropriately?
 

  • A zoning plan which – individually or in combination with other plans or projects – may have significant effects for a Natura 2000 site can only be adopted if it has been ascertained, on the basis of an appropriate assessment, that the plan will not adversely affect the natural features of a Natura 2000 site (Sections 2.7(1) and 2.8(3) of the Wnb).
  • A zoning plan that provides for a spatial development that – compared to the actual lawful situation under planning law, at the time of adoption of the plan – leads to an increase in nitrogen deposition on overloaded nitrogen-sensitive natural values in a Natura 2000 site is a plan that can have significant effects and that must be assessed appropriately (see the Council of State’s ruling of 20 December 2017, ECLI:NL:RVS:2017:3530).
  • NB: Adoption of the zoning plan is not one of the decisions within the meaning of Section 2.7 of the Nature Conservation Decree [“Bnb”], so the PAS assessment framework does not apply. This does not alter the fact that various competent administrative bodies did not carry out an individual appropriate assessment for a zoning plan but referred regarding the nitrogen aspect to the appropriate assessment based on the PAS.
Ground 35
  • The ruling may have effects for such zoning plans if the appeal procedure has not yet been completed and if, as regards the appropriate assessment, grounds for appeal have been advanced by the party entitled to invoke these provisions.
Ground 35.1
  • Pursuant to Section 2.8(2) Wnb, it is not necessary to carry out an appropriate assessment for such zoning plans if the spatial development provided for in the plan has previously been the subject of an appropriate assessment and a new appropriate assessment cannot reasonably provide new information and insights into the significant effects of that plan.
Ground 36

 

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