Environment Act: transitional law. What will change immediately as of July 1, 2022?

The introduction of the Environment Act is one of the largest legislative operations in Dutch history. Its introduction is currently scheduled for July 1, 2022. To ensure a smooth transition from the current system to the new system, transitional law has been provided for. In this publication, I discuss the main components of the transitional law. I provide insight into how the current zoning plans transform into the environmental plan, what happens to pending procedures, and what about existing permits.

From zoning plan to environmental plan (by operation of law) in transition phase

One of the most important legal instruments of environmental law is the zoning plan. Under the Environment Act, the zoning plan will disappear and be replaced by the environmental plan. Once the Environment Act enters into force, the current zoning plans will become environmental plans by operation of law. This is called the "environmental plan by operation of law" or "temporary part. In fact, these are the same zoning plans that will then, however, collectively form one environmental plan. Furthermore, the environmental plan will be supplemented with other regulations that belong in the environmental plan by operation of law from the entry into force of the Environment Act. For example, management regulations and the dowry. From that moment on, a municipality (or rather, the municipal council) can start adopting a new, permanent environmental plan. This can be done all at once, but it is likely that municipalities will choose to gradually adopt the environmental plan on a site-by-site basis.

With the introduction of the Environment Act, regulations on various subjects that are currently regulated at the state level will expire. From the entry into force of the Environment Act, it is intended that rules on those subjects will be set in the environmental plan. To ensure that there is no legal vacuum, transitional law has been provided for these rules: the "dowry. It concerns about 600 rules from the Activities Decree, the Building Decree and the Environmental Law Decree (Bor). The rules relate to the hospitality industry, retail trade, construction and, for example, emissions of noise, odor and vibrations. The dowry will be part of the temporary part. It is then up to the municipalities to weigh up whether and how they want to include the rules in the new environmental plan that is yet to be drafted.

The temporary part of the omgevingsplan will come into being immediately after the Omgevingswet enters into force. Municipalities can start adopting parts of the new environmental plan from then on. The intention is that around 2029 (the date is not yet fixed) all rules from the temporary part will have been replaced and that the new rules will be part of the new environmental plan. The temporary part will expire by operation of law on that date yet to be determined.

Certain regulations will not become part of the environmental plan by operation of law, for example the General Municipal Bye-Law (APV). The municipality itself must integrate these ordinances into the new environmental plan during the transition phase. These local ordinances will therefore remain separate from the environmental plan by operation of law and will not become part of the environmental plan until they are incorporated into the new environmental plan.

Finally, what is important to know about the transition phase is that no adjustments can be made in the temporary part. Thus, the temporary part is frozen. Site-by-site rules can be established in the new part of the environmental plan. Decision-making on new developments from the moment of introduction will be exclusively through the new instruments of the Environment Act in the new part of the environmental plan. The temporary part of the environmental plan can only be amended by the irrevocability of, for example, zoning plans in which the procedure for entry into force has started.

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Old law continues to apply for pending proceedings

For pending proceedings, these will be completed on the basis of current law. For decisions on applications, if someone has submitted an application before the Environment Act enters into force, the old law will continue to apply until the decision is irrevocable. Only the lex silencio positivo (permit by operation of law) will no longer apply from the entry into force of the Environment Act.

For ex officio decisions, if the decision is prepared with the regular procedure, the old law applies to the entire procedure if the decision was published before the Environment Act entered into force or the competent authority gave interested parties the opportunity to submit a view. For decisions prepared with the extended procedure, the old law applies if the draft decision was made available for inspection before the entry into force.

Different rules apply to decisions that become part of the environmental plan by operation of law. Examples include zoning plans and development plans. If a decree is or has been available for public inspection prior to the effective date, the old law applies until the decree becomes effective. Once the decrees are irrevocable, they become part of the temporary environmental plan by operation of law. This is the only way the "frozen" environmental plan can still be amended by operation of law.

Existing permits remain in principle

Existing environmental permits granted under the old law will in principle become an environmental permit by operation of law under the Environment Act. The permit requirements will continue to apply. In some cases, the permit requirement may lapse. Old permit requirements then become customization requirements. In a number of rare cases, an activity is not subject to a permit requirement before the Environment Act comes into force, but after it does. For example, for certain environmentally harmful activities for which an environmental permit for limited environmental assessment is required under current law. In this particular case, a permit arises by operation of law for an indefinite period of time.

New applications are subject to the new law

For applications after the Environment Act takes effect, the new law will apply. The applicable environmental plan can be consulted after its entry into force via the Digital System for the Environment Act (DSO). Publications to follow will discuss the most important aspects of the Environment Act in more detail.

What changes immediately?

The biggest immediately noticeable change is the environmental plan that will apply by operation of law. In terms of content, however, it still consists of the old laws and regulations. Municipalities will start adopting the permanent environmental plan in its entirety or location-by-location as soon as it takes effect. During the transition phase, two environmental plans will actually apply side by side: the temporary part and the permanent part. For procedures started before the entry into force, no changes will occur yet. Most environmental permits will change by operation of law into permits based on the Environment Act. For new applications, once they enter into force, they will be processed entirely through the instruments and rules of the Environment Act.

If you want current law to continue to apply during proceedings, you must have filed an application before the effective date or ensure that the municipality has made a zoning plan available for review. It cannot be said in general terms whether it is advisable to file an application before or just after the effective date. After enactment, for example, fees may be charged for environmental permits. This is not the case under current law. On the other hand, under the new law, the regular (short) procedure becomes the norm. So it depends on the activity and the new rules whether the old or new law is more favorable.

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