If you operate an establishment, it’s important to understand the difference between a “revision permit” [revisievergunning] and a “modification permit” [veranderingsvergunning]. In a recent ruling (only available in Dutch), the Administrative Jurisdiction Division of the Council of State (the “Council of State”) explained when a revision permit applies. In the case concerned, that meant that enforcement action against the presence of a LPG system at a service station in Uden was correct.
The operator of a service station was operating a LPG system at the site. The neighbour was unhappy about this and asked the Municipal Executive of the Municipality of Uden to take enforcement action. According to the neighbour, the presence of the LPG system was in breach of the service station’s permit. The Municipal Executive then imposed an order – subject to a penalty for non-compliance [last onder dwangsom] – for the termination of use and removal of the LPG system. The ensuing administrative law proceedings centred on the issue of whether the LPG system was legal on the basis of a previously issued permit or illegal because that permit had ceased to apply due to the issuing of a “revision permit”. The Council of State was required to decide whether there was indeed a “revision permit” or an “modification permit”.
Revision permit or modification permit?
You apply for a modification permit when an establishment or a mining structure (or its operation) is to be modified and the modification does not meet the permit regulations of the applicable environmental permit [omgevingsvergunning]. If the modification for which a modification permit has been sought is a demarcated activity that can be assessed separately, then the competent authority (usually the Municipal Executive, although there are statutory exceptions) will be inclined to process the modification permit application as such. In that case, the modification permit will relate to the intended modifications.
That is not the case with a revision permit, which basically encompasses the entire establishment. When a party applies for a modification permit, the competent authority – acting at its own initiative or on the basis of a request pursuant to Section 2.6 of the Environmental Law (General Provisions) Act [Wet Algemene bepalingen omgevingsrecht, “Wabo”] – may decide that a revision permit must be applied for in respect of that modification.
The competent authority has discretionary power when deciding whether or not to require a revision permit. Justifiable reasons for it to require a revision permit include an unclear permits database, the length of time since the first permit, an application for a modification accompanied by an application for a one-off activity such as construction, changes of such a nature that a substantially different establishment will be created, or “other reasons”. The revision permit may only be demanded if one or more environmental permits have been granted for the establishment or the mining structure. In addition, the revision permit is mainly appropriate for long-term activities and not for one-off activities such as demolition or felling trees. If a revision permit is granted, it replaces – as of the date when it takes effect – all previously issued environmental permits (in so far as they relate to the establishment or the mining structure). Important: if the competent authority indicates that it wishes to receive an application for a revision permit and this request is not complied with, then the application submitted for a modification permit will not be processed.
Ruling by the Council of State: the parties’ intentions
Had a modification permit been granted in the case concerned, then the previously granted permits would not have ceased to apply and the LPG system could still have been allowed to operate. But if a revision permit had been granted, then the old permits would have ceased to apply and the LPG system would not have been allowed to operate.
The Council of State concluded that what was concerned was a revision permit, as a result of which the previously granted permits (including that for the LPG system) ceased to apply. The following conditions were important for that classification:
- the actual application stated that the permit being applied for was a revision permit;
- the drawings accompanying the application concerned the entire establishment;
- the fact that the permit applied for was a revision permit for the entire establishment was stated in the permit itself and also in permits that had previously been granted but had since been invalidated or withdrawn;
- the permit states that the permit applied for will be refused in so far as it concerns the delivery of motor fuels to trucks and the operation of a LPG installation, but that it will otherwise be granted.
The Council of State also found that the absence of any explicit reference in the permit to Section 2.6 Wabo (the legal basis for a revision permit) did not affect the classification as a revision permit. Even without such a reference, it was clear, according to the Council of State, that a revision permit had been applied for and granted.
This ruling confirms that the text, the purpose, and therefore also the intentions of the parties to the permit/permit application can be decisive in whether the permit is to be classified as a revision permit or a modification permit, including in the context of enforcement (and supervision).