Environment Act: the Building Works Environment Decree

In the run-up to the introduction of the Environment Act on July 1, 2022, in this blog series we are already informing you about its consequences. This time it is the turn of the Building Works Decree for the Living Environment.

The Built Environment Decree (Bbl) is one of the four general administrative measures under the Environment Act and can be seen as the "replacement" for the Building Decree 2012. The Bbl contains the general government regulations on safety, health, sustainability and usability of buildings. For example, the Bbl contains rules on the condition and use of a structure and on the performance of construction and demolition work. The Bbl also sets rules for various construction-related activities: the (technical) construction activity, the environmental plan activity, fire-safe use of structures, the demolition activity and the mobile crushing of construction and demolition waste.

The Bbl contains general rules. This means that the rules apply to anyone who performs or wants to perform an activity in the physical living environment. For each activity, the Environmental Act and the underlying governmental decrees determine when a notification obligation or a permit obligation applies. The Bbl then describes which substantive rules apply and whether there is room for customization or equivalent measures. This generally also applies to activities that are not subject to notification or licensing.  

Most of the rules in the Bbl come from the Housing Act and the 2012 Building Decree. In addition, it contains rules that come from the Energy Performance of Buildings Decree and the Environmental Law Decree and some regulations from the Environmental Management Activities Decree.

In this publication, I elaborate on permit requirements, permit-free construction and deregulation.
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The licensing requirement

My colleague Robin Evens explained in an earlier blog how the licensing of construction activities will change. The test for construction activities will break down into two different legal activities. The '(technical) construction activity' and the 'environmental plan activity'. Assessment of the technical building activity will take place on the basis of Bbl. The Bbl designates the technical building activities for which, for the purpose of a preventive test against technical building regulations, an environmental permit is required.

Most of the rules in the decree are elaborated in target and means regulations. The target rule must always be met. The means rule provides a method for complying with the target rule. The rules are meant to be exhaustive. Municipalities can only set their own rules insofar as customization is made possible in the customization articles from the Bbl.

An example. In Chapter 3 (existing construction), Section 3.3.6 includes rules about daylight. The control article states that sufficient daylight must be able to enter a structure. Then, in the corresponding table, rules from the daylight area article are designated for different functions. If these rules are followed, the control article is complied with.

Article 4.7 of the Environment Act contains a regulation for equivalence. This enables innovative solutions that have not yet been laid down in regulations. Article 2.4 of the Bbl contains further rules on this. The regulation for equivalence gives the possibility to apply another measure that is equivalent to the original measure in the Bbl, for example for protection against fire. An initiator can take different construction measures to meet the building requirements to limit the consequences of fire from the Bbl.

Permit-free construction

The possibility of permit-free construction remains. The nationally uniform category of permit-free environmental plan activities is designated in Chapter 2 the Bbl. A continuation of Article 2 Annex II of the Environmental Law Decree is envisaged. It concerns both permit-free inner plan and outer plan environmental plan activities.

Deregulation

The approach of the Bbl was to transpose the content of the 2012 Building Code as far as possible unchanged. In a number of cases, however, it has been decided to further deregulate. This applies, for example, to certain rules that are not transposed but will now fall under specific duties of care. In addition, the usability requirements from the 2012 Building Code for non-residential functions are deregulated. Project developers can now, for example, respond with more freedom to what is desired in the development of utility buildings (for example, offices and stores).

In conclusion, the rules in the Bbl are mainly a continuation of the rules in the Building Code. The permit obligation for the technical building activity is regulated in the Decree and the categories for permit-free building are also designated in the Bbl. Furthermore, there is deregulation compared to current law, resulting in more freedom for the market. However, deregulation and open standards also lead to a certain degree of legal uncertainty, which in turn can lead to regulation (whether locally fragmented or not). So we will have to see to what extent the deregulation ambition actually holds up.