No environmental permit by operation of law in case of concealed application

In its March 20 ruling[ECLI:NL:RVS:2019:829], the Division put an end to the possibility of obtaining an environmental permit by operation of law with a veiled application in, for example, a notice of objection or other bill to the municipality.

Decision by operation of law

Timely decision-making is important for legal certainty for both the applicant and third party interested parties. The legislature has therefore included in the law "as a stick" that certain consents are automatically obtained if no timely decision is made.

For several "positive" decisions, therefore, if an application is made to obtain such a decision and no timely decision is made on that application, the law requires that the desired decision be obtained by operation of law. Well-known examples are environmental permits to build, but they can also include an environmental permit to deviate from the zoning plan. It can therefore have major consequences if the college fails to respond to an application in a timely manner.

It may be interesting for initiators to submit an application without the college being aware that an environmental permit has been requested. However, obtaining an environmental permit by operation of law, for example, is not intended to reward sneaky applications.

Environment Counter

In general, applications for environmental permits are submitted via the Environment Desk or via a standardized paper application form. In this way, applications are also immediately recognizable as such. However, it has long been established case law that an application can also be made outside the Environment Counter or that form. This led to some initiators attempting to submit an application with a subtle letter. If the municipality then failed to recognize that letter as an application in time, the decision period was soon exceeded.

There has been a line in case law for some time that the Division has been getting stricter in its assessment of whether an application has been made. See on this, for example, this blog by Rudi Minkhorst.

No application unless

In the March 20 ruling, the Division introduces a much stricter line. The Division does not want to prescribe that all applications must be submitted through the Omgevingsloket, but the Division is patently done with veiled applications. Therefore, in its March 20 ruling, the Division determined that from now on the Division will rule that a request for an environmental permit that is not made through the Environment Counter or an application form is an application only if it is immediately clear, or may be clear, that an application has been made. This should always involve an independent document. Thus, only in the case of such an obvious application can an environmental permit be obtained by operation of law.

Only for environmental permits?

It is notable that in its consideration the Division specifically addresses environmental permits. This probably stems from the fact that an environmental permit can change something in the immediate vicinity. An environmental permit obtained by operation of law can therefore also have consequences for third parties.

There are other conceivable decisions that can also have consequences for third parties, but this ruling does not yet affect them. I certainly do not rule out that the Division will apply this line to other decisions that may be relevant to third parties.

Transitional law

The Division also introduces a form of transitional law for this new line. In the ruling, the Division explains that the new line does not affect environmental permits by operation of law that have already been announced and for which the time limit for lodging an appeal has expired unused. Nor does the new line affect a decision against which an objection, appeal or review has been lodged and which has been followed by a judgment that has become final in law. Thus, decisions that already have formal legal force are not affected.

The fact that the Division formulates this transitional rule so explicitly means that only those environmental permits that have become law by operation of law and have the force of formal law no longer need to follow this new line. All pending applications or environmental permits that are still subject to objection, appeal or review proceedings may still be confronted with this line of case law. This ruling therefore also has retroactive consequences for applications already submitted and procedures still pending.

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