The Environment Act: from establishment to environmentally harmful activity

Under the Environment Act, the environmental rules in the Environmental Management Activities Decree will give way to rules in a new Order in Council: the Environmental Activities Decree (hereinafter: Bal). With the introduction of the Bal, the concept of "establishment" will be abandoned and a new central concept will be introduced: the environmentally harmful activity. The shift to the environmentally harmful activity brings with it the necessary changes but also certainly offers opportunities. In this blog you can read what this shift means for your initiative.

Environment Act entry into force

In the run-up to the enactment of the Environment Act, we have written several articles on partial aspects of that law. Earlier, we highlighted another AMVB accompanying the Environment Act: The Built Environment Decree. Recently, my colleague Robin Evens wrote a series of three articles on planning damages.
We also informed you about fees under the Environment Act, flexibility and procedures under the Environment Act, the technical construction activity, coordinating under the Environment Act, the changed system for an application for a test against the environment plan, steering options, the transitional law and we explained the difference between a zoning plan and an environment plan.

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From 'establishment' to 'environmentally harmful activity'

With the arrival of the Environment Act, the concept of 'establishment' as used in the Environmental Management Act and the Wabo will no longer return. Instead, the Environment Act will use the broader concept of 'environmentally harmful activity'. The environmentally harmful activity (Mba) is defined in Annex 1.1 to the Environment Act as follows:

'activity that may cause adverse effects on the environment, other than a discharge activity to a surface water body or a treatment works or a water abstraction activity'

The explanatory notes to the Bal show that the interpretation of the environmentally harmful activity will also differ in a number of respects from the establishment under the Environmental Management Act. For example, it is no longer important that an activity is performed as a business or 'to the extent that it was a business'. In the Bal, a threshold will be included as much as possible for each activity.

In addition, for the environmentally harmful activity, it no longer matters how long the activity is performed. The rules in the Bal apply regardless of the duration of that activity. This prevents difficult discussions when activities unexpectedly last longer than previously estimated. For example, storing soil for a work for less than 6 months was not an establishment, but if, due to delays in the work, the soil remained longer, it suddenly became one. Under the Environment Act, state rules apply if an activity is environmentally harmful, regardless of its duration.

Organizational ties no longer relevant

Furthermore, for the environmentally harmful activity, any existing organizational ties are no longer considered. The rationale behind this is that purely organizational ties potentially bring in activities that have nothing to do with the environmentally harmful (core) activity. Think, for example, of a greenhouse company that uses an old greenhouse as caravan storage. The organizational ties from the establishment concept meant that that activity would also be regulated by environmental rules because of the organizational tie to the greenhouse horticulture company. Under the Bal, caravan storage does not qualify as an environmentally burdensome activity and the rules of the Bal do not apply either.

Note: the boundaries of an activity and any technical and functional connections do remain relevant factors on the basis of which an activity can be classified as an environmentally harmful activity. Multiple activities that take place on behalf of the core activity of, for example, a greenhouse company can thus be regulated by environmental rules.

Deregulation and customization?

The Ball is characterized by deregulation. Deregulation at the national level fits with a credo often heard in the context of the Environment Act: 'decentralized, unless'. Many activities, such as catering, are no longer regulated by the Bal. Municipalities can choose to include rules for these activities in the environmental plan, but they do not have to. These rules can therefore differ from one municipality to another. For an initiator, it is therefore advisable not only to look at the national rules in the Bal, but also to consult the applicable environmental plan and/or the dowry.

Chapter 4 of the Bal also includes possibilities for customization. Customization can be applied on the subjects mentioned in article 2.10 (specific duty of care), section 2.7 (unusual incidents) and chapters 3 through 5 of Bal (environmentally harmful activities).

For a detailed explanation of customization and examples of cases where customization can be done, I would like to refer you to an earlier blog in this series by my colleague Arjan Loo.

What rules apply to your development?

The main difference from current regulations is that with the advent of the Environment Act, fewer activities will be regulated by state rules. Not all environmentally harmful activities are subject to government regulations, let alone a permit requirement. For a good picture of the applicable rules for a proposed development, it is therefore wise to go through the following steps:

1. Check whether the environmentally harmful activity is designated in Chapter 3 of the Bal.
   • If not, see whether or not the specific environmentally harmful activity is regulated at the decentralized level.
   • If yes, find out whether the environmentally harmful activity is subject to a permit requirement.
2. Go through the indicators to find out what additional rules apply to the specific environmentally harmful activity.
3. For the specific environmentally damaging activity, check out the possibilities for customization.

Deregulation at the state level is undoubtedly going to create differences between municipalities. A development may encounter different environmental regulations in each municipality. The varying regulations may therefore be a factor for branch companies to take into account, for example because of customization rules for retail companies. For (night) catering, hotels and office premises, the Bal does not include national standards. Different rules may therefore apply locally for those activities.