Fees: won't be any more fun, but easier under the Environment Act?

Fees are charged for services provided by governments. This will not change under the Environment Act. It will be more difficult for municipalities to establish good fee regulations. For developers and builders, the new Environment Act means that they will have to look even more closely at what fees are and are not levied and how they are calculated. The differences between municipalities will increase.

Environment Act

This year we are informing 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, coordination options and the test for an application to obtain an environmental permit.

This contribution discusses how the ability or inability to levy fees is regulated under the Environment Act.

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Legal basis

The legal basis for charging fees remains Article 229 of the Municipalities Act. This provides that fees can be levied for services provided by public authorities. New is Section 13.1a of the Environment Act. This explicitly provides that a municipality or province can levy fees as referred to in Section 229 of the Municipalities Act from the applicant or the person for whose benefit the application is made for processing an application for an environmental permit, an amendment of regulations of an environmental permit or revocation of an environmental permit.

Thus, the Environment Act explicitly provides that fees are due for processing an application. The question is therefore whether less fees are payable in the event that a permit is not granted, as is now often the case. In any case, the work model ordinance 2022 does provide for this. It is also striking that it is stipulated that fees can be levied not only from the applicant but also from the person for whose benefit the application is made. In addition, it is noteworthy that fees can also be levied for the amendment of regulations or withdrawal. Whether this will be used in practice is up to the municipalities.

What to charge/not charge for

Case law of the HR determined that no fees may be levied for the establishment of zoning plans because this is not a service. According to the HR, the determination of a zoning plan does not involve a predominantly individual interest, but a general interest. Incidentally, by no means all municipalities have this focus! It seems plausible that under the Environment Act the HR will not rule differently for an environmental plan.

Under the Environment Act there will be a lot of room for municipalities to make choices on how they want to regulate things. Licensing requirements may be included in an environmental plan. Fees can be charged for this. However, it is also possible to work with notifications and duties of care, for which no fees may be charged. This means that municipalities, when adopting administrative fees regulations, must take care not to charge fees for matters for which this is not allowed and conversely, not to forget to name parts for which they want to charge fees. This leads to more work for municipalities than under the current regime. Related to this is the fact that it must be carefully examined which costs of the municipality can be allocated to services for which fees may be levied.

Transition year

An additional point of attention is the date of entry into force of the Environment Act. If the Environment Act enters into force on July 1, 2022, and thus halfway through the year, the situation arises that during the first half of the year fees must still be levied for permits based on the current regime. Halfway through the year this must then be based on the Environment Act. In order for this to run smoothly and to ensure that the budgets on which the fees ordinance is based are correct, the adoption of 2 fees ordinances and thus the preparation of 2 budgets seems most appropriate. 1 dues ordinance based on the current regime for the situation until the Environment Act comes into force and 1 dues ordinance applicable from the entry into force of the Environment Act. That this leads to duplication of work goes without saying. Against that background, a January 1 entry into force of the Environment Act would be preferable.

Would you like to be informed about the Environment Act and related regulations in a short time? And are you curious about the practical translation to your daily practice? Think about the environmental plan, obtaining permits, flexibility possibilities in plan development, procedural steps and transitional law. Then follow our course.