Coordinating under the Environment Act, much is possible

Article 3.30 et seq. of the Spatial Planning Act (hereinafter: Wro) contains a coordination scheme that has been increasingly used in recent years. And not without reason. By applying the coordination scheme, considerable acceleration can be achieved, especially if a zoning plan and an environmental permit for the activity of "building" are prepared in a coordinated manner.  

Interested parties who disagree with these decisions must file an appeal directly with the Administrative Law Division of the Council of State against both decisions. This avoids (1) a time-consuming objection procedure and (2) an appeal procedure with the court - as far as the environmental permit is concerned. This way of proceeding does imply that the draft zoning plan and the draft environmental permit, with all accompanying documents, must be made available for inspection simultaneously.

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Environment Act 

Under the Environment Act, the coordination scheme from the Spatial Planning Act, as well as from other sectoral regulations, will expire. Not to worry, one new coordination procedure will replace this. This will be regulated in an amended Section 3.5 of the General Administrative Law Act, which should enter into force simultaneously with the Environment Act. 

The new coordination scheme applies if provided for by statutory provision or in a coordination decision. Article 16.7 of the Environment Act indicates when coordination is mandatory. This includes a number of water activities. Much more often, voluntary coordination will be at issue for which, as under the Wro, a coordination decision is required. 

For example, if the college of mayor and aldermen wants to coordinate decisions that are not its jurisdiction, it will need the consent of the administrative bodies whose jurisdiction is involved for coordination. 

In order for coordination to take place in the best possible way, it is desirable that, as far as possible, the decisions be requested simultaneously from the coordinating administrative body. In any case, there should be no more than six weeks between the first and the last application. If this time is longer, the last application is no longer included in the coordination. 

Of importance is that article 3:25 Awb (new) stipulates that if section 3.4 Awb (extensive preparatory procedure) applies to one of the decisions to be coordinated, all decisions are prepared by means of that procedure. In case of coordination, this preparation procedure is subject to some adjustments, such as the possibility of giving an oral opinion.  

Another adjustment is that, in the event that views can be submitted by anyone against one draft decision, this applies to all decisions (Art. 16.23 Ow). This is the case, for example, if a new environmental plan is involved in the coordination. Indeed, it follows from Section 16.30 Ow that Section 3.4 Awb applies to the preparation of an environmental plan. Environmental permits are in principle subject to the regular procedure, unless otherwise provided. If the coordinated decisions are limited to this, the regular procedure may therefore apply to these preparations. It is important to note that in the event the applicant requests or agrees, the extensive procedure may be chosen (Article 16.65 of the Ow). In addition, for an out-of-plan environmental plan activity, the competent authority may decide to apply Section 3.4 Awb if (1) the out-of-plan environmental plan activity may have significant effects on the physical living environment and (2) it is expected that several interested parties will have objections. 

Also under the modified coordination scheme in Section 3.5 of the Awb, the decisions to be coordinated are considered one decision as far as appeals are concerned. 

These decisions can then be appealed to the court, unless one of these decisions can be appealed to the Administrative Law Division of the Council of State, in which case, therefore, all decisions must be appealed directly to the Administrative Law Division of the Council of State (art. 3:29 Awb).  

The Administrative Jurisdiction Regulations (Appendix 2 of the Awb) will include the provision that an environmental plan (like a zoning plan now) can be appealed directly to the Administrative Jurisdiction Division of the Council of State. As is currently the case with the coordination of the zoning plan and an environmental permit, an environmental plan and an environmental permit will thus soon be subject to direct appeal to the Administrative Law Division of the Council of State if they have been prepared in a coordinated manner. The amended Section 3.5 Awb offers the possibility for this.