Flowchart assessment framework internal netting:
Internal netting: then permit-free and now permit-required
When
According to established case law, the nitrogen deposition of the proposed project may be 'eliminated' (offset) against the nitrogen deposition of the existing 'reference situation' (e.g. the Logtsebaan ruling) during the 'pre-assessment', i.e. the assessment of whether a project may have significant effects and thus require a nature permit. If the preliminary assessment shows that there is no increase in nitrogen deposition, significant effects are excluded and the project does not require a nature permit.
Now
The aforementioned settled case law has since been updated. For the question of whether a project may have a significant impact, the deposition of the new project may no longer be offset against the deposition in the reference situation in the preliminary assessment. The preliminary assessment may only consider the new project in isolation, i.e. without including the existing situation. If the new project by itself may lead to significant impacts and netting is necessary to mitigate those impacts, a nature permit is required. In other words, internal netting is now subject to a permit requirement.
Changed reference situation in environmental permits
The rulings also tightened the requirements for the reference situation. This is now in line with the requirements that already applied to external balancing (which was always already subject to a permit). There is no difference in the new situation if the reference situation is based on a previously granted nature permit. In that case, the deposition permitted therein can still serve as the reference situation. If the reference situation is derived from an environmental permit (environmental licence, notification of Activities Decree or general rules), then netting is only possible with depositions from activities that are not only licensed, but also actually present. Structurally unused space in an environmental permit - for example, a licensed and reported but never realized industrial hall - is no longer part of the reference situation.
Applicability of provincial policy: skimming emissions?
Following the 2019 PAS ruling, provinces established policy rules on how nature permits are granted. Those policy rules covered both internal and external netting. However, internal netting turned out not to require a permit, so the policy rules for that could be binned. With the decisions of the Division, those policy rules can be dusted off again. As is already the case with external offsetting, this means that provinces can skim off part of the emissions used for offsetting. For example, in connection with nature restoration: part of the emissions to the initiator and part to nature.
Additionality requirement
In line with this, the'additionality requirement' now also applies to internal offsetting. This means that before emissions are netted off, it must first be assessed whether these emissions should not already be terminated (surrendered) for nature restoration (as a so-called 'conservation measure' or 'appropriate measure').
Interim conclusion
In summary, then, the following is true:
- internal balancing is subject to licensing;
- when netting with an environmental permit, only licensed and actual activities can now be used;
- provincial policies now apply when permits are granted that can provide for skimming of rights with which to offset; and
- in internal netting, it must now be assessed whether the rights should not be used for nature restoration.
For development practitioners, this means a greater chance of not being able to "round out" a project, as well as more administrative burdens and costs, and a greater chance of litigation with associated delays, now that third parties can pursue legal remedies against granted nature permits. But the poison cup is not yet empty.
Direct application
The new assessment framework for internal netting applies directly, so not only to new projects but also to current applications, enforcement, objections and (higher) appeals.
It is advisable in such ongoing projects to take the flight to the front and assess the consequences of the amended assessment framework as soon as possible. A small windfall is that with the entry into force of the Environment Act, there is no longer a necessary link between building and nature permits (so-called "linkage requirement"). A procedure concerning only an environmental permit for construction (including OPA construction) will therefore not be killed. For BOPAs, however, this may be relevant in connection with the question of whether a development is possible in principle (feasibility test 'light').
Retroactive to Jan. 1, 2020, no enforcement for now
In fact, it makes the change retroactive, to January 1, 2020. All activities commenced on or after Jan. 1, 2020 (construction/operation) and made possible with internal netting will be subject to retroactive licensing. This applies (probably) even if an activity has been granted a positive refusal. This means that all those (tens of thousands, if not hundreds of thousands) may be strictly illegal, as long as they have not been granted a nature permit as yet. For those cases, the Division has ruled that there is a five-year transition period during which no enforcement action can be taken against them.
And now?
Now the Netherlands finds itself with yet another nitrogen debacle. Not only the Division, but also the courts are now at a loss because "it can no longer be explained." For development practice, it is wise to identify the projects for which the change of course is relevant and then consider what is wise. In other words, these are projects:
- that actually started (construction and/or operation) on or after Jan. 1, 2020;
- for which internal netting has been used, whether through positive refusal or not.
Information session Jan. 16, 2025
These rulings have major practical implications. That's why our attorneys will be hosting an information session on January 16, 2025 to update you on the implications, whether the soup is indeed being eaten so hot, and to take you into space that does exist. Exact times and location will be shared later. So keep a close eye on our website and socials!
