The construction exemption annulled: next steps
On Wednesday, the highest administrative court in the Netherlands put an end to the possibility of using the construction exemption. This statutory exemption, under which construction projects were allowed to cause (temporary) nitrogen effects during the construction phase of a project, violates European law and may therefore no longer be applied. This ruling has major implications for the construction sector. From now on, every single project (again) requires an individual assessment of the nitrogen effects in the construction phase. Below you can read more about the consequences of the ruling and the possibilities for projects to (succesfully) proceed.
Since the PAS rulings in 2019, the 'nitrogen crisis' has been a much-debated topic in the Netherlands. In the PAS rulings, the highest administrative court annulled the 'integrated approach to nitrogen' (programma aanpak stikstof) (PAS) for being in breach of the European Habitats Directive. As a result, activities could no longer rely on this programme as a basis for permitting. Following the rulings, each plan or project with potential nitrogen effects required an individual assessment as to whether it could have significant effects on one or more Natura 2000 areas. If that was the case, a nature permit was required. This development led to more complicated permitting procedures and delays, especially for construction, infrastructure and energy projects. In an attempt to provide a solution to the nitrogen crisis and to simplify the permitting process, the legislator introduced the so-called (partial) "construction exemption" as per 1 July 2021.
What is the construction exemption?
Projects may cause nitrogen deposition in both the construction phase (bouw- en aanlegfase) and the operational phase (gebruiksfase) of the project. Under the construction exemption, nitrogen effects caused during the construction phase no longer had to be taken into account when assessing whether a nature permit is required for a project. As a result of the construction exemption, construction and environmental permits could be obtained faster and more easily for many projects that exclusively (or also) caused nitrogen deposition during the construction phase.
On 2 November 2022, the highest administrative court ruled that the construction exemption violates Article 6 of the European Habitats Directive. Reason for this is that it follows from the Habitats Directive that a project is only allowed if (i) it can be determined with certainty that individual protected Natura 2000 areas will not be harmed as a result thereof and (ii) if the set of measures that the legislator uses as justification for the construction exemption has actually been implemented and it is clear what the expected benefits of those measure are. The construction exemption does not meet these requirements and can therefore not be relied upon. As a result, the legal regime applicable before 1 July 2021 applies again. This means that each project requires an individual assessment of nitrogen effects in both the construction and the operational phases.
The consequences of the ruling for projects with nitrogen effects (only) in the construction phase
This overview shows the consequences of the ruling and possible follow-up actions for the different phases of a project.
The consequences of the ruling for projects with nitrogen effects in the operational phase as well
For projects that also have nitrogen effects in the operational phase: permits that have already been applied for or have been granted that rely on the construction exemption for the construction phase no longer suffice as a result of the Porthos ruling. The reason for this is that the permit application or permit itself does not address the nitrogen effects caused in the construction phase. This introduces the following risks for permitting for those projects:
(i) during the permitting process, no permit can be granted unless it can be demonstrated that the project does not lead to significant effects on Natura 2000 areas;
(ii) at the appeal stage, the permit will be annulled unless it can be demonstrated that the project does not lead to significant effects on Natura 2000 areas;
(iii) after the permit becomes irrevocable, third parties may submit a request for revocation under Article 5.4 of the Nature Conservation Act. The competent authority must then weigh the interests and decide whether revocation is appropriate.
It is possible that, for a project with nitrogen effects in the operational phase, no nature permit was applied for because the project could make use of internal netting (intern salderen). If internal netting is successfully applied, a nature permit is not necessary. In that case, it should be investigated whether following the Porthos ruling a nature permit is required for the nitrogen effects during the construction phase. See the above overview for that.
The consequences of the ruling for zoning plans
Strictly speaking, the construction exemption did not apply to zoning plans. To the extent that the substantiation of the construction exemption was relied upon in the preparation or adoption of zoning plans, this substantiation is insufficient to conclude that the zoning plan cannot have significant effects on Natura 2000 areas. This makes zoning plans vulnerable in appeal proceedings, unless it can be demonstrated that there are no significant effects on Natura 2000 areas. If a zoning plan has already become irrevocable, this zoning plan will remain in force. However, for a project carried out within the area covered by such a zoning plan, an individual assessment is still required in order to ensure that the project will not have significant effects on Natura 2000 areas.
NB The possibility of (successfully) applying the European Habitats Directive derogation option (ADC-toets) to adopt a plan or obtain a nature permit for a plan or project that has significant effects on Natura 2000 areas is not discussed here