130 homes next to highly nitrogen-sensitive dune area
The zoning plan provides for the construction of up to 130 homes in former greenhouse area on the outskirts of Monster. The plan is right next to Natura 2000 area Solleveld & Kapittelduinen, but still makes it to the finish line. This ruling confirms that building right next to highly nitrogen-sensitive and overburdened areas is still possible, although good advisors are indispensable.
In this case, the Natural Delfland Association opposed the housing plans. The Association would have preferred an expansion of the adjacent dune landscape. Although, according to the explanatory memorandum, the plan provides for "a unique character involving living in the dunes" and the dune landscape is actually being expanded (somewhat), this was apparently insufficient for the Association to waive an appeal against the zoning plan.
The ruling addresses two major nitrogen issues, namely the 1) one-to-one incorporation of a nature permit into a zoning plan and (exceptions to) the 2) reference situation to a plan.
Old law: plan-mer required for appropriate assessment
Normally, for a plan such as this one, in which nitrogen deposition on nitrogen-sensitive Natura 2000 areas cannot be excluded in advance, an appropriate assessment would have to be prepared. Under the old law, which still applied to this plan, the need for an appropriate assessment meant that a plan-mer (plan-environmental impact assessment) also had to be drawn up (art. 7.2 and 7.2a of the Environmental Management Act; incidentally, since December 2020, art. 3 of the Decree on EIA (Decree milieueffectrapportage) contains some exceptions to this plan-mer obligation). A plan-mer has quite a lot to do, so it saves a lot of time and research burden if no appropriate assessment, and thus no plan-mer, is necessary.
1. One-to-one incorporation nature permit....
In this case, the plan already had a longer history, with a permit under the Nature Conservation Act (Wnb) already granted in 2020 for the construction of 133 dwellings in the plan area. Article 2.8 of the Wnb (now: Art. 16.53c of the Environment Act) provides for the possibility of "one-to-one incorporation" of such a nature permit into a zoning plan. When adopting the zoning plan, one can then refer to the appropriate assessment made for the permit, so that a new appropriate assessment (and thus a plan-mer) is no longer necessary.
... unless granted with SSRS
Although the reference to (or one-to-one incorporation of) the nature permit could have been done on its own, that permit was granted at the time using deposition space from the Nitrogen Registration System (SSRS). That deposition should be available because of the national speed measure (100 km/h on highways). In a ruling of October 2, 2024 however, the Council of State ruled that the nitrogen output of that measure was insufficiently assured. Thus, permits granted on that basis do not sufficiently exclude significant impacts, so that this permit and appropriate assessment could not be referred to either.
Anticipation is golden
Fortunately, the council (and the developer) have been alert enough to conduct a new nitrogen study in advance. That is far better than proceeding against better judgment, or on principle, without a proper backstop. Although the appeal on this point was upheld, the legal consequences remain. And that's the important thing: that the plan stands up under scrutiny.
New nitrogen study: internal balancing (plan)
Arguments have also been made about the new nitrogen study. It makes use of internal netting. The new nitrogen deposition is then 'balanced out' against the (old) deposition in the reference situation. By 'reference situation' in a plan (other than an environmental permit(project)) is meant the actual, planning lawful situation prior to the adoption of the plan. In this case, therefore, the situation at the time of plan adoption on February 15, 2022.
2. Reference situation
The nitrogen study assumed greenhouse farming activities for the reference situation. However, the Association claims that after the demolition of the greenhouses and before the adoption of the plan, other nitrogen-causing activities took place, namely the cultivation of corn and grass (and related fertilization). This indeed appears to be the case. Because the glasshouse horticulture had already been zoned away in favor of a residential zoning (to be developed) and was therefore subject to transitional law, the question is whether this new use was allowed from a planning perspective. If that is not the case, that use cannot constitute a reference situation either, so there is no reference situation. However, that question does not need to be answered, because in this case there is an exception to the main rule for the reference situation.
Exception main rule reference situation
In a decision of 1 September 2021 the Council of State explained the conditions under which activities that ended before the reference date used can still be included in the reference situation:
- it must be indisputably established that the activity was terminated solely for the purpose of the development allowed by the plan, which must be evidenced, for example, by a purchase agreement prior to the time when the activities were terminated;
- it must be excluded that the activity would have ended before the reference date anyway; and
- in the period between the cessation of the activity and the adoption of the plan, no other nitrogen-causing activities must have occurred on the parcel in question.
In this case, the purchase agreements entered into by the municipality with the greenhouse grower could be used to demonstrate compliance with conditions 1 and 2. If the sale had not been concluded, the greenhouse grower would still have operated his business there. Compliance with condition 3 is more difficult, given the intervening agricultural use.
Well other activities, still met condition
The Council of State is accommodating and considers that the protected natural values benefited from ending the greenhouse farm as soon as possible. After all, it would be strange to continue these burdensome activities just because of the picket line for the reference situation: that would not help nature. The temporary management measures were only necessary to bridge the gap and to prevent nuisance for the surroundings, whereby the temporary nature is also evident from the concluded agreements. Moreover, the council has stated without dispute that although some fertilization has taken place, with only minor emissions. Under these circumstances, the Council of State concludes that after the greenhouse horticulture activities ceased, there have been no new nitrogen-causing activities that can be considered representative and relevant. Greenhouse horticulture can therefore be taken as the reference situation.
Lesson for practice
In development practice, it often happens that after the termination of activities for a new development, the land is temporarily used differently. It is therefore important to establish that this is a temporary use and to limit (nitrogen) emissions during this period as much as possible. If the other conditions mentioned above are also met, the previously terminated activity can still serve as the reference situation.
