Faster and more flexible decision-making is one of the goals of the Environment Act. That the Environment Act makes decision-making more flexible for governments, I explained in outline in an earlier blog. The question is whether the Environment Act also provides more flexibility for citizens and businesses in developing their plans and subsequent assessment.
A good reason to consider whether the Environment Act also offers flexible(er) options for initiators. By flexibility I mean that in a concrete situation customization can be provided, given the specific aspects and circumstances of a proposed development. Aspects and circumstances, with which influence can be exercised (extra space can be used) to get a development permitted.
Impact of environmental law
This year we inform you about the consequences of the (likely) entry into force of the Environment Act on July 1, 2022. Among other things, you were previously informed about the environmental plan, procedures under the Environment Act, coordination options and the substantive test when applying for an environmental permit.
In this article, I discuss flexibility tools for initiators under the Environment Act.
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Flexibility for promoters
For citizens and businesses, flexibility under the Environment Act will be obtained to a large extent through the application of customization relative to
- General rules, in the form of an equivalent alternative,
- Area-specific rules, in the form of custom rules or a
- Individual measure, tailored specifically to a particular situation, in the form of a custom rule.
These flexibility instruments are already more or less familiar in our current environmental law. Nevertheless, the government emphasizes the possibility of using these flexibility instruments more broadly than has been the case so far. Despite the fact that the Council of State is critical of the broadening of the applicability of these instruments, these instruments have been given a broad scope in the Environment Act that allows for a broad(er) application.
Let's zoom in on these "tangible" flexibility tools for initiators.
1. Equivalency
Initiators are entitled to an equivalence test under the Environment Act. This equivalence test means that an initiator can submit a proposal to the competent authority to replace a certain measure, which must be taken according to decentralized rules or state rules, by another measure that is equivalent to (the result of) a prescribed measure.
The equivalence test can apply to many measures and be completed in many different ways. It can be a combination of construction-technical, organizational or utilization-technical solutions. In the case of a gas station, for example, one might consider the realization of an earth embankment or a collection trench for escaping flammable liquids, which protects against fire safety risks just as well as a fire-resistant façade and thus may possibly lead to a cost saving that makes the alternative attractive(er).
How is it determined whether a measure is equivalent?
It is important to note, however, that the competent authority is ultimately the one who determines whether a measure is equivalent. So the competent authority does have a certain amount of discretion.
To determine whether a measure is equivalent, it must be clear what interest the measure serves: how purpose of the legal provision is decisive. For example, if a measure is designed for energy efficiency, only that is considered when considering whether a measure is equivalent. Aspects that fall outside this purpose should not lead to a refusal of equivalence consent.
Of course, the competent authority must be able to assume the reliability of an equivalent measure. In that light, it is to be expected that the competent authority will indicate in advance that certain measures will always be considered equivalent, thus eliminating the need for an equivalency test. A notification requirement could then suffice instead of the equivalency test.
Conversely, the competent authority - for example, because of European standards - may prohibit the possibility of taking equivalent measures in advance.
2. Customization rules: area-specific customization
With the entry into force of the Environment Act, fewer activities will be subject to national standardization. For example, environmentally burdensome activities such as restaurants, discotheques and office buildings will (for the most part) not be standardized by national rules under the Environment Act. Municipalities will have the option of including their own rules on these in the environmental plan, subject of course to instructional rules.
Despite the fact that the ambition under the Environment Act is to regulate as much as possible in a decentralized manner, it is inevitable that directly effective rules will have to be set at the national level for certain environmentally burdensome activities, such as, for example, the transport or service sector. If those rules are set at a higher level, it is possible for municipalities to set their own (customized) requirements in certain cases, tailored to the local situation.
The possibility for municipalities to set (their own) customization rules - the environmental plan will be the usual place for this - does depend on the possibilities, offered at the national level for this purpose. For customization rules, it can be stated in general terms that they are subject to minimal restrictions. Municipalities therefore have considerable freedom to provide site-specific customization, which can concretely lead to lower (but possibly also higher) requirements with which a development must comply.
Flexibility can be created, for example, by including flexible environmental values in an environmental plan. For example, it is conceivable that different values will apply to the center area of Utrecht than to the center of Mill en Sint Hubert or the outlying area of Sneek.
It is interesting how the broader scope of the environmental plan (rules that pertain to "the physical living environment") will affect the ability of municipalities to set customization rules. After all, because of this broader scope it is possible for municipalities to deploy customization much more broadly. And thereby create more customization for initiators.
3. Customization requirements: individual customization
Custom rules have the advantage that they apply to an entire area or category of cases. With customized regulations, the competent authority can deviate (further) from general rules precisely for specific cases. This can be done on its own initiative or on request.
The legislator sees tailor-made regulations as a common means in, among others, unforeseen situations, special cases, local (specific) circumstances or if the achievement of ambitions for the quality of the physical living environment gives reason to do so. Examples of situations in which a customized regulation might be reasonable[1]:
- A company receives permission to temporarily cause more noise pollution than is allowed under the environmental plan. For example, because there has been an incident in the company, making it temporarily impossible to meet the normal values.
- A company receives permission to discharge cooling water via a different discharge route than is allowed under the Living Environment Activities Decree. For example, because there is no connection to the wastewater sewer.
- A developer gets permission for a building without a fire department entrance because that structure does not require it.
In this kind of situation it is not desirable, or at least it should not be, to hold an initiator to generally applicable national rules. Customization is then appropriate, which - as mentioned above - an initiator can request himself. Again, the standard of the "physical living environment" makes it possible to deploy customization more broadly.
More customization possible under environmental law
Under the Environment Act there will (may) be more customization. For example, because an equivalent measure proposed by an initiator must, as a rule, be accepted. Or because fewer activities will be standardized at the national level and entrusted to decentralized customization. Moreover, the spatial scope of environmental plans will extend to the 'physical living environment', allowing for a much broader use of customization. The question as yet is how these possibilities for customization will be embraced.
[1] https://iplo.nl/regelgeving/instrumenten/maatwerkvoorschrift/
