Despite this setback for the construction industry, there are still opportunities to obtain permits. In the spirit of the Remkes Committee's most recent nitrogen report "What can be done - Out of the impasse and a start for perspective," this blog first looks at the steps that can be taken in the context of nitrogen for new developments, then concludes with practical tips for developers.
How can it be done?
Anyone who opened the newspaper in recent days may just get the impression that there is no more building at all in the Netherlands. That is a false impression. The department's press announcement did not say "Building exemption nitrogen off the table, but no total construction stop" for nothing. There is no need for a construction freeze. Below we discuss the possibilities to continue building. To illustrate this, a ladder was chosen in which the research burden for initiators increases with each step.
Step 1: the 'quick' pre-test
Before the construction exemption was introduced, it was customary for every construction project to be accompanied by an AERIUS calculation for (also) the construction phase, which is part of the application. If the calculation shows that a rounded 0.00 mol/ha/year falls on a nitrogen-sensitive protected area, significant negative effects can be excluded and no further action is required. Because the construction of smaller projects usually releases very little nitrogen deposition, this quick pre-test will suffice in many cases. The distance to Natura 2000 area is also important here (the further away from Natura 2000, the less chance of relevant nitrogen deposition).
This calculation can take into account certain measures that reduce nitrogen emission. Such measures can include shorter driving lines for construction traffic, more economical or electric equipment (higher STAGE class) or even a nitrogen extractor (NoNox filter). Please note that these measures are part of the requested activity so they do not qualify as mitigation measures."[1]
Step 2: Preliminary ecological assessment
If 0.01 mol/ha/year or more falls on a nitrogen-sensitive protected area, this does not immediately mean that a construction project cannot go ahead. When, based on objective data, it can be excluded without further investigation that the construction phase of a project will lead to significant negative effects, permission can still be granted at low depositions. This assessment should be done by an ecologist who is expected to use the "Handreiking vooroets stikstof" as prepared by Bij12.[2]
Before the construction exemption was implemented, this guidance was frequently used. This guidance states the rule of thumb that a temporary deposition of no more than 0.05 mol nitrogen per hectare per year, for a maximum of 2 years, or equivalent, will not lead to significant negative effects.
Step 3: Preliminary assessment with internal balancing
When existing activities take place (or are allowed to take place) on a plot (on which a building is to be constructed) that lead to a certain nitrogen deposition, then the termination of that activity may be included in a nitrogen calculation. This is called internal netting.
The existing activity then counts as the reference situation. Strict rules apply to determining a reference situation. These rules are different for zoning plans than for projects (environmental permits). It is therefore important to be clear which of these is at issue.
For land that is fertilized, the Division is relatively lenient on internal balancing.[3]
If the new activity results in fewer negative nature impacts than the existing activity, an environmental permit can be granted relatively easily. Internal balancing is, and probably will remain for the time being, legally the most robust solution for granting building permits.
Step 4: Appropriate assessment (ecological study).
When the previously mentioned routes are not sufficient and the project may have significant effects, an appropriate assessment is necessary. This appropriate assessment must establish with certainty that the project will not affect the natural characteristics of the area if the project is to be permitted. In such an appropriate assessment an ecologist looks at the specific area characteristics and what the influence of extra nitrogen deposition is on the characteristics of the protected area. It will vary for each protected area how much temporary deposition can or cannot be added.
Even with such an appropriate assessment prepared by an ecologist, sometimes relatively large projects can still go ahead. This is evident from the March 4, 2020 ruling on the "Overnachtingshaven Lobith" incorporation plan before the introduction of the construction exemption. During the construction phase, the highest deposit increase was 3.13 mol N/ha/year on the relevant habitat type and 5.05 mol N/ha/year on the habitats in the Natura 2000 area Rijntakken. The Division ruled that "- due to the temporary contribution, the vegetation occurring on site and the buffering effect of the soil - the effects are not noticeable."[4]
Step 5: Appropriate assessment with external netting
A next step by which project consent can be obtained is external netting. This involves using the termination of an activity at another location that results in certain nitrogen deposition as a "mitigating measure" to make a project possible. There is a problem with this external offsetting. The competent authority must also justify why the nitrogen space from the terminated activity is not necessarily needed for nature restoration.[5]
Because many provinces cannot get that justification at present, they have stopped facilitating external offsetting. The moment serious work would be done to buy out peak loaders, external offsetting is also expected to become easier.
Step 6: ADC test
As a last resort, there is the so-called "ADC test," namely if nitrogen impacts cannot be eliminated by the aforementioned steps. For successful use of the ADC test, it must be established that there is:
- no (less nitrogen taxing) Alternatives to the development (e.g. can the houses also be built further from Natura-2000);
- there are Urgent Reasons of Public Interest (e.g. housing shortage);
- sufficient Compensation can be provided (e.g., by creating sufficient "replacement" nature elsewhere).
Because the requirements for these three conditions are stringent, they are usually used only for large infrastructure projects. However, it cannot be ruled out that housing can also be realized in this way, given the existing housing shortage.
Tips:
To avoid ending up on a higher rung on the nitrogen ladder, there are a few principles and techniques you can use:
- Develop near major access roads. The sooner the traffic associated with a new development merges into the "prevailing traffic pattern," the less nitrogen impacts will be attributed to that project.
- Develop on land that may be fertilized. If land will no longer be fertilized after development, the nitrogen space released as a result can be used through internal balancing. The Council of State takes a relatively flexible approach to this.
- Slice the salami. With smaller projects, permission will be granted more easily. Therefore, when new developments will be implemented in phases anyway, it may be smart to break up a large project into smaller projects (although restrictions apply to this as well).
- Build as little as possible on site and as much as possible in the factory. The shorter the construction period and the fewer activities there are on site the easier it is to obtain permission.
- Make use of technical innovations or electric equipment. This could include VolkerWessels' NoNox filter, for example.[6] In addition, in some cases, a permit requirement that only electric construction equipment may be used is also sufficient.
Should you have any questions as a result of this blog. Please contact our specialized attorneys construction or environment & project development. They will be happy to help you further.
[1] Mitigation measures may only be considered in an appropriate assessment.
[2] Rechtbank Den Haag 16 September 2021, ECLI:NL:2021:10438 r.o. 7.1. and https://www.bij12.nl/nieuws/handreiking-voortoets-stikstof/ and
[3] Compare: ABRVS October 12, 2022, ECLI:NL:RVS:2022:2874 r.o. 23 et seq. with the May 11 judgments of the Overijssel District Court(https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Overijssel/Nieuws/Paginas/Provincie-Overijssel-moet-opnieuw-kijken-naar-stikstofbesluiten.aspx)
[4] ABRVS 4 March 2020, ECLI:NL:RVS:2020:682 r.o. 18.3
[5] See ABRvS 24 November 2021, ECLI:NL:RVS:2021:2627 r.o. 30.4, Rb. Limburg 19 May 2021, ECLI:NL:RBLIM:2021:4127 and Rb. Limburg 20 May 2021, ECLI:NL:RBLIM:2021:4198.
[6] https://www.vshanab.nl/nl/actueel/detail/nonox-doorontwikkeld
