Where a deviation from the prevailing zoning plan is required for a construction or occupancy activity, what is known as a ‘minor exemption’ pursuant to section 2.12(1)(a)(2) of the Dutch Environmental Permitting (General Provisions) Act (Wet algemene bepalingen omgevingsrecht) might suffice in some cases.
Such exemptions do not require reasoned spatial planning substantiation: an integral weighting of interests that factors in the consequences for the living environment may suffice (simple assessment). This involves the regular preparatory procedure of up to 8 weeks (which period the competent authorities may extend once by 6 weeks). The available minor exemptions are enumerated in what is known as the spatial planning ‘minor exemptions list’ set forth in section 4, annex II to the Dutch Environmental Permitting Decree (“EPD”) (Besluit omgevingsrecht). Common 'minor exemptions’ that have a broad scope of application include the possibility to transform and re-designate an existing building (transformation section, section 4 at 9) and the possibility to allow all forms of temporary different use for a period of 10 years (temporary deviation, section 4 at 11).
However, section 5(6) of annex II to the EPD prescribes a restriction for applying the provision at 9 and 11 of the minor exemptions list referred to above. It follows from this section that a permit may not be granted for these activities by way of a minor exemption if they also involve an activity as meant in part C or D of the annex to the Dutch Impact Assessment Decree (“IAD”) (Besluit effectrapportage). The application of this section has led to discussions in professional literature and uncertainty regarding the application of the minor exemption activity in practice. The question raised was whether the mere fact that an activity was mentioned in part C or D of that annex constituted sufficient reason to no longer be allowed to apply any minor exemption, or whether the threshold values also specified in that annex had to be satisfied first. In practice, it is especially relevant whether the construction and/or occupancy activity might possibly also involve the environmentally relevant activity 'urban development project' (part D 11.2 of the annex to the Dutch Environmental Impact Assessment Decree (“EIAD”) (Besluit milieueffectrapportage).
The case law that had developed regarding this questions was not clear either, although it did gradually become apparent that in any case the threshold values specified in the annex to the EIAD were not deemed to be of decisive importance. However, in her judgment dated 7 May 2015 (ECLI:NL:RBOVE:2015:2230) the preliminary relief judge of the District Court of Overijssel took the threshold values of part D 11.2 into account in the preliminary judgment that the case in question did not involve an urban development project and that consequently the right minor exemptions procedure had been followed. However, on 24 January 2016 (ECLI:NL:RBOVE:2016:90), that same district court held that it followed from Parliamentary history that the phrasing of section 5(6) of annex II to the EPD was abstracted from the question of whether the case in question was subject to mandatory EIA. The district court held that in such a case it need only be assessed whether it involves an activity as meant in column 1 of part C or D of the EIAD. Therefore, the right procedure had not been followed in the case in question. On 26 April 2016 the preliminary relief judge of the District Court of Noord-Nederland ruled that it must be inferred from Parliamentary history that the spatial planning and/or environmental impacts per region or area must be assessed, which may also involve an urban development project, if the threshold values referred to above are not exceeded. However, according to the preliminary relief judge, the threshold values must be regarded as indicative. Idem District Court of Midden-Nederland, 19 May 2016 (ECLI:NL:RBMNE:2016:2742). Lastly, on 23 September 2016 (ECLI:NL:RBAMS:2016:6029), the District Court of Amsterdam ruled that the threshold values specified in column 2 were irrelevant for the application of section 5(6). This means that the activities specified in column 1 of part D11.2 of the annex to the EIAD do not fall within the scope of application of section 4 at 9 and 11 of annex II to the EPD. Thus, according to the District Court of Amsterdam, the activities specified in column 1 of D11.2 do not fall within the scope of the minor exemptions arrangement.
On 7 December 2016 the preliminary relief judge of the Administrative Jurisdiction Division of the Council of State issued a preliminary ruling regarding the matter addressed in the above-referenced judgment of the District Court of Amsterdam (ECLI:NL:RVS:2016:3279). Specifically, it concerned an application for a temporary integrated environmental permit for Schipholparkeren in Amstelveen, which was contrary to the prevailing designated use 'Agricultural – greenhouse horticulture'. The preliminary relief judge found that 'one of the questions addressed in the appeal proceedings was whether based on category 11.2 of part D of the annex to EIAD the parking in question qualified as an activity within the meaning of section 5(6) of annex II to the EPD and the question of whether that section concerned a condition for applying the power within the meaning of section 2.12(1)(a)(2°) of the Environmental Permitting (General Provisions) Act, or a specific requirement that determines the scope of this power. In that respect, one of the aspects taken into account was that column 1 of category 11.2 of part D of the annex to the EIAD includes the activity construction, modification or expansion of an urban development project and the Municipal Executive had used the term urban development project as meant in section 1.1.1(1)(i) of the Dutch Spatial Planning Decree (“SPD”) (Besluit ruimtelijke ordening) as the reference to interpret the term ‘urban development project’. The preliminary relief judge was of the opinion that this question required further examination in the proceedings on the merits.
However, in terms of the weighing of interests, the preliminary relief judge saw insufficient basis to conclude that the above-referenced judgment of the District Court of Amsterdam would not be upheld. One of his findings was that 'column 1 of category 11.2 of part D of the annex to the EIAD mentions the activity construction, modification or expansion of an urban development project and the Municipal Executive used the term urban development project as meant in section 1.1.1(1)(i) of the SPD as the reference to interpret the term urban development project. In view of this and in part based on the size of the envisaged car park areas, which taking together all parcels of land come to approximately 115,000 m², it is for the present assumed that it concerns an activity as meant in column 1 of category 11.2 of part D of the annex to the EIAD. In addition, it is for the present inferred from the Explanatory Memorandum on the amendments to the EPD (Dutch Bulletin of Acts and Decrees 2014, 333, p.58) that, as found by the district court and contrary to the assertions of Elora B.V. and others, the threshold values specified in column 2 of category 11.2 of part D of the annex to the EIAD are irrelevant for the application of section 5(6) of annex II to the EPD (…)’.
We doubt that this ‘removes’ the problem for applying minor exemptions in light of mandatory EIA activities in practice. Like the District Court of Amsterdam, the preliminary relief judge of the Division has in any case for the present ruled that the threshold values for the relevant activities in the annex to the EIAD are irrelevant. Thus, this is clear. However, whether a construction or occupancy activity can also still be an urban development project that is not subject to a prescribed form of mandatory EIA leaves plenty of room for interpretation. It follows from the Division’s judgment that in this context the definition of ‘urban development’ used in section 1.1.1(1i) of the SPD is used as a reference, in which respect the scope of a development may also play a role. The question of whether or not a permit may be granted for a project by applying the minor exemptions arrangement is therefore still uncertain in certain cases. In practice this could mean that in cases where doubt exists, a project deviation will be opted for in favour of the minor exemptions arrangement to in any case prevent the wrong procedure from being followed and a decision being set aside on that ground. That would lead to delays and an increase in research expenses. The question is whether this is a desirable effect of section 5(6) of annex II to the EPD.