In the new Environment Act, the principle is that everything that can be decentralized should, in principle, be decentralized. With this, the idea is that more responsibilities for the "physical environment" will fall to the municipalities and less to the state or provinces.
An important (intended) advantage of this (further) shift for builders and developers is that once everything has been properly coordinated with the municipality, there will be fewer delays in projects because there is no need to coordinate with higher authorities or other administrative bodies. However, this does not mean that there will no longer be any interference at all from the national or provincial governments or other administrative bodies in municipal environmental plans, permits and projects.
In this publication, I will outline the main instruments of influence that exist: the instruction, mandatory advice and consent, and reactive intervention.
Instruction Rules
The most far-reaching influence concerns the instrument of instruction. Instruction rules allow higher authorities to instruct lower authorities to make decisions within certain ranges. These rules, which are general in nature, can be established by provincial environmental ordinance and by general order. Instruction rules are binding on other (lower) administrative bodies and thus (extensively) interfere with municipal autonomy.
Nevertheless, the national and provincial governments may not include instructional rules on every subject, and formal requirements apply to these instructional rules. Instruction rules may only relate to the legal figures listed exhaustively in some articles in §2.5.1 of the Environment Act. It follows that instruction rules may be set about the content or justification of, for example, programs, environmental plans, tailor-made regulations and project decisions. The authority to include instruction rules is broad and can cover many aspects, for example, specific rules in environmental plans about functions at locations and rules for a deviation activity or about environmental values to be included or included.
It is therefore important, when developing (building) plans, not only to blindly rely on the rules in an environmental plan, but also to assess whether those rules are in accordance with (binding) instruction rules. Otherwise, there is a risk that a permit will be put through a line afterwards.
However, instruction rules are not (always) cast in stone, in the sense that it is also possible to obtain an exemption for them. This request must be made by the administrative body to which the instruction rule in question is addressed.
Interestingly, in the case law on the current Spatial Planning Act, the Administrative Law Division of the Council of State is very reluctant to accept such an exemption, so it is not often used in practice. The Environment Act aims to broaden the scope of the exemption power. As a result, it is expected that the case law of the Council of State will also become more flexible.
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Instructional Decisions
The national and provincial governments can also issue an instruction decree under the Environment Act. With an instruction decree, the province gives a mandatory order to a municipality for certain situations, similar to what is called a proactive designation in current legislation.
The most important situation for practice, in which such an instruction decision can be given, is for the inclusion of certain rules in an environmental plan. Such an instruction decision can only be given if the interest on which that instruction decision is based is indicated in a document made public by an administrative body of the province or the state.
Under the current system, this proactive designation is not widely used, but that might change under the Environment Act. Especially with the current housing shortage, it is quite conceivable that in the coming years provinces will issue instructional decisions requiring municipalities, for example, to enable new housing locations in an environmental plan.
The difference between an instructional rule and an instructional decision is that an instructional decision addresses a concrete situation, while the instructional rule is intended for repeated implementation by multiple administrative bodies.
Advice and consent
The fact that more powers go to municipalities in the Environment Act does not mean that other administrative bodies can no longer have any involvement. In fact, another administrative body, for example a Water Board, may have its own responsibility and should be able to influence municipal decision-making because of a specific task or expertise.
Specifically, this concerns a right to advice or a right to advice with consent. In the case of an opinion with consent, the administrative body concerned has the option of withholding consent in the event of deviation from its opinion and thus sanctioning the deviation.
In general, the basic premise of the Environment Act is that a specialized administrative body is given only an advisory power and can therefore demonstrate its expertise, but in some cases the advice is not limited to just an opinion, but also requires the consent of another administrative body. Which cases these are will be determined by order in council.
The advice with consent is very similar to the declaration of no objections as we know it today. Currently, such a declaration of no objections is required, for example, for environmentally burdensome projects or projects that affect Natura 2000 areas (think of nitrogen) or if an environmental permit is granted, which requires an extensive preparation procedure.
Whether a project should only take such advice into account, or actually require consent, depends on the specific project being undertaken.
Reactive intervention
The Environment Act also offers the province the possibility to take a decision that determines, that certain parts of a (municipal) environment plan are no longer part of that environment plan. This decision is called a reactive intervention and is similar to the figure of the reactive designation in the current system.
The intervention option means that after the announcement of the environmental plan, Provincial Councils can determine that a part of the environmental plan does not remain part of the environmental plan, with which that part of the environmental plan does not enter into force and thus does not constitute a review framework for permit issuance.
A condition for the use of the power of intervention is that there must be a conflict with a provincial interest and that the Provincial Executive has submitted an Opinion on the draft environmental plan. If no view has been submitted against a draft environmental plan, this means - in principle - that the province has agreed, or at least that there is no possibility for the province to stop a development (afterwards).
In conclusion
Despite the desire for greater municipal autonomy under the Environment Act, important steering and influencing instruments for the national, provincial and other administrative bodies will remain, such as the proactive and reactive designations and the declaration of no objections, albeit under different names. At the same time, the intention is that it should be easier to deviate from them. Whether this will actually be the case, the future will have to tell.
