The (in)certainties about the DSO
Date: July 25, 2022
Modified November 14, 2023
Written by: Thijs Cornel
Reading time: +/- 2 minutes
Date: July 25, 2022
Modified November 14, 2023
Written by: Thijs Cornel
Reading time: +/- 2 minutes
The Environment Act will enter into force on January 1, 2024. An important reason for postponement has always been the state of the Digital System for the Environment Act (DSO). It is expected that much tinkering with the DSO will be required after the Environment Act enters into force. Chances are that the information in the DSO will not yet be complete when it comes into force. In this blog, Thijs Cornel and Suzanne Germeraad take a tour of the fields: what is already certain about the DSO?
In the run-up to the entry into force of the Environment Act, we are informing you about the consequences of its (probable) entry into force, on January 1, 2024. For example, we have informed you about fees under the Environment Act, flexibility and procedures under the Environment Act, the Building Works Decree, the technical construction activity, coordinating under the Environment Act, the changed system for an application for a test against the environment plan, steering options, transitional law, cost recovery, we have explained the difference between a zoning plan and an environment plan, and the consequences for planning damage have been outlined. We also covered the flexibility that the Environment Act offers businesses in developing their plans and the subsequent assessment.
In the current system, we have spatialplans.nl for the provision of spatial rules. Among other things, zoning plans are published through ruimtelijkeplannen.nl. According to the Spatial Planning Decree, the representation of that zoning plan is leading and binding. Zoning plans can often also be consulted as analog documents.
The publication of Environment Plans will take place through the National Provision for Publication and Availability (LVBB). Through the LVBB, the publication of (an amendment of) an Environment Plan will be handled on officielebekendmakingen.nl and overheid.nl.
From now on, environmental plans must be structured in a fixed way (TPOP). These rules must be converted to more or less comprehensible text via a so-called geographic information object (GIO). When adopting (an amendment to) an environmental plan, a link to the GIO will be included in an appendix so that the GIO becomes legally binding.
However, only the version (in text) of the plan on overheid.nl is not workable for legal practice. To properly interpret the GIO, a link to the "rules on the map" is needed. That link is also provided by the LVBB. The problem is that the requirements to the TPOP and the GIO are so brief that a very cluttered set of overlapping rules is shown on the map.
To clarify matters, planning legislators will be given the ability to "annotate" the rules in the environmental plan themselves. A municipality can start annotating to which location a rule applies, and which environmental values belong to it, for example. The manner in which municipalities annotate is left entirely free in the TPOP, and not all annotations will have a binding character.
In short, the rules on the map are in all likelihood a very cluttered set. For proper interpretation of the rules, the efficacy of the viewer is crucial. An environmental plan, unlike a zoning plan, cannot be consulted analogously. In addition, the knowability of the rules is compromised by a possible jumble of annotations. [1]
To find out whether a permit is actually required for the activity you want to perform, it is also possible in the DSO to complete a 'Permit Check'. By completing a question tree, you can not only find out whether an activity requires a permit, but also immediately prepare a permit application or a notification. In any case, the question trees will also be available for the 160 most common types of applications.
In principle, the outcome of a permit check is not legally binding. The applicable regulations remain decisive in determining a permit requirement. To that extent, not much will change compared to the permit check in the Omgevingsloket Online. The government did let slip that if the permit check is filled out with the correct data, a successful appeal to the principle of trust may be at issue.
Please note! Until the Environment Act takes effect, applications and notifications must be submitted via the OLO. Supplementing an already submitted application is still possible up to six months after the date of entry into force. From the moment the Environment Act enters into force, applications and notifications must be made via the DSO.
The target image for the DSO is a digital system in which all information about the physical environment can be consulted in one place. This pilot does not (yet) seem to be feasible for issued and applied for environmental permits. The reason would be that personal data cannot yet be sufficiently protected.
Environmental permits may well contain interesting information regarding a potential development. It is therefore advisable, also with regard to environmental permits, to check for a proposed location whether a permit has not already been granted on site.[1]
Under the current system, for example, when a new zoning plan is adopted, it is relatively easy to compare that plan with the previously applicable zoning plan (which is often still accessible online). Under the Environment Act, that will be different. All zoning plans will in time merge into one Environment Plan. When that single comprehensive plan changes, it is difficult to see which rules have previously applied to a particular location. That is why the so-called 'time travel' must be added to the DSO. This new functionality should make it possible to look back to see which decision is in force at a certain location at a certain moment in time. Time travel is a feature that we do not have in the current system.
Although the government's responses indicate that the viewer is not yet working properly, at least a minimal form of time travel seems possible:
"Time travel was tested with the judiciary. The outcome of this was that it is sufficiently possible to ascertain which regulations applied at time X in the past. For the legal implementation practice this is the form of time travel that is a prerequisite for entry into force. However, there were still findings about how these will be represented in the DSO viewers. These will still be processed this year, i.e. before entry into force."
Time travel to the past will therefore be possible, at least in a slimmed-down form, upon enactment. Time travel to the rules that will apply in the future is not yet possible, nor will it be when the law comes into force. On that front, the government has had to adjust its 2015 administrative ambitions.
At the end of January, Minister Hugo de Jonge announced that the entry into force of the Environment Act will again be postponed, this time until January 1, 2024. A postponement like all previous times, one would think. Yet something stands out this time. For the first time, the minister concludes that:
"the functionalities offered in the DSO are technically sufficient at the time of entry into force and on this basis there are no obstacles to responsible entry into force."
In October 2022, the ICT Advisory Commission still concluded that there were still major steps to be taken, especially in the area of (chain) testing. In December 2022, a (cautiously) more positive tone was heard. 'Continue along the chosen path' was then the message of the research committee.
That message has apparently been taken to heart by De Jonge and his followers. In barely a month's time, firm efforts were made to systematically test the DSO, allowing for the detection of errors and minimizing risks. A blow was also struck in the provision of so-called Temporary Alternative Measures (TAMs). For example, soon the familiar IMRO standard can still be used (temporarily).
In short, although much work still needs to be done to get the DSO working, according to the minister, the DSO will be sufficiently ready on January 1, 2024. The entry into force of the Environment Act then really does seem (one small step) closer. So is there light at the end of the tunnel called the DSO after all?
When we take stock, the conclusion is that there is still much that is not clear as far as the DSO is concerned. Perhaps the greatest uncertainty is the efficacy of the system as a whole. A properly functioning DSO is of essential value for achieving the objectives of the Environment Act. Meanwhile, therefore, the link is regularly made between the success of the DSO and the entry into force of the Environment Act.
Minister De Jonge's progress letter seems cautiously optimistic for the first time. The minister seems to assume that entry into force on January 1, 2024 is now really feasible. Until then, it remains to wait and, as far as possible, practice with the available demo version[2].
[1] See: Korsse in TBR2023/14.
[2] Work is currently underway, however, to enable the publication of notifications of environmental permits granted or applied for, which may (partially) solve this problem.
[3] https://dmo.omgevingswet.overheid.nl/home
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