From establishment to environmentally harmful activity under the Environment and Planning Act: 5 things you need to know

Under the old law, a business or an activity was subject to general rules or the obligation to have an environmental permit only if there was an ‘establishment’ within the meaning of the Environmental Management Act (Omgevingswet). There were three criteria for assessing this. The activity had to be undertaken (i) for a certain period of time; (ii) consistently at the same location; and (iii) for commercial purposes or on a certain scale. The guiding principle of the Environment and Planning Act, however, is that as many activities as possible should be regulated by general rules. Allowing activities under a permit will therefore be an exception.

The Environmental Activities Decree (Besluit activiteiten leefomgeving; Bal; Decree) designates a number of environmentally harmful activities that require a permit and which are subject to national rules. There are also environmentally harmful activities that are not designated in the decree. Decentralised rules may apply to those activities on the basis of a zoning plan. Certain multi-sector activities that are environmentally harmful, complex operations, and environmentally harmful activities that are typical of a particular industry may be subject to both national rules (under the decree) and decentralised rules (under the zoning plan). To find out which rules apply to those activities, it is important to look at both the national rules and decentralised rules.

As regards the term ‘establishment’, the question often arose as to whether there was one single establishment. If that was the case, different activities could be combined into a single permit. In practice, the problem was that it was not always clear beforehand whether a particular activity constituted an ‘establishment’ and whether this involved a single establishment or multiple establishments.

For there to be a single establishment, its installations had to (i) belong to the same company or entity; (ii) be interconnected technically, organisationally or functionally; and (iii) be located in close proximity to each other. Not all of these interconnections had to be present. A sufficient degree of interconnection sufficed. That would be the case if two of the three interconnections were there, one of which was organisational in nature.

The decree distinguishes between different categories of groups of activities. There are also sectors that have not been designated as environmentally harmful activities, such as offices, shops, and schools. The idea being that those sectors can be regulated under the (decentralised) zoning plan. By abandoning the term ‘establishment’ and introducing the concept of environmentally harmful activities and identifying them in the decree, greater clarity has been created about whether an activity is environmentally harmful and what rules should then apply.

If there was a single establishment, the permit obligation under the old law applied to the establishment as a whole: one company, one permit. The rules under the Activities Decree and the customised regulations applied to the company as a whole. Because it was not always clear beforehand whether there was a single establishment, this gave rise to problems in practice.

The concept of ‘environmentally harmful activity’ under the Environment and Planning Act is seen as an improvement because general rules or the obligation to have a permit now only apply to specific environmentally harmful activities of a company. Under the Environment and Planning Act, many companies that currently constitute a single establishment will comprise multiple environmentally harmful activities. The environmental effects of these separate activities will no longer be attributed to the establishment, but can be permitted for each separate activity. This will require assessing which of the environmentally harmful activities undertaken at the location need to be regulated. This assessment is important because it can be used to determine whether the environmentally harmful activity is to be regulated by permits, general rules, or local rules.

This does not mean to say that each and every aspect of an activity is to be considered a separate activity under the Environment and Planning Act. This is also evidenced by the way in which activities are designated in Chapter 3 of the Environmental Activities Decree. The question of whether there is an environmentally harmful activity is answered by means of three steps.

First of all, the (core) activity is to be defined. Next, the assessment looks at whether there are any functional support activities, such as parking spaces or an office building. If these activities are designated in the decree, they form part of the environmentally harmful (core) activity. These functional support activities share similarities with the term 'technical interconnection' (technische binding) under the old law. Finally, the designation provided in the Decree also indicates whether any exceptions apply. For example, the designation may not apply if the situation concerns a household or certain thresholds are not met.

If different activities are performed in close proximity to each other, whether or not by different legal entities, then under the current law they are covered by a single permit if they form a single establishment within the meaning of the Environmental Management Act. Under the new Environment and Planning Act, different activities must (see below under i) or can (see below under ii) be covered by a single permit.

1. A single permit must be granted if the designation as described in the Decree includes multiple environmentally harmful activities. It is therefore important to analyse the description as provided in the Decree and to assess the extent to which the designation includes multiple activities. These may be activities with a relatively high environmental impact as designated in Chapter 3.3 ‘Complex operations’ of the Decree. Examples of complex operations are ‘Seveso’ establishments and ‘IPPC’ installations.
2. In certain cases, a single environmental permit may be applied for in accordance with Section 5.7 of the Environment and Planning Act to cover multiple environmentally harmful activities. In such cases, the applicant may choose to apply for a permit for a single activity or multiple activities. It is no longer required that activities that are ‘inextricably linked’ be applied for jointly. For example, an environmental activity can now be applied for separately from a construction activity.