Environment law: requesting review of the environment plan yourself

With the advent of the Environment Act, licensing for construction activities will change. Permitting for construction activities will be divided into two parts. The structural test and a possible test against the environmental plan. The planning test as we know it now will be replaced by a stand-alone assessment framework, whereby it will first be determined in the environmental plan whether a planning test is necessary.

Knowledge series on the Environment Act

This year we inform you about the consequences of the (likely) entry into force of the Environment Act on July 1, 2022. My colleagues Arjan Loo and Anne de Jong preceded me. Arjan wrote about the difference between zoning plans and the future environmental plan and about steering possibilities of (higher) authorities in municipal procedures. Anne explained what changes the coming into force of the Environment Act directly entails. You will also find much more information about the Environment Act on our Environment Act Expertise page.

In this article, I explain how permission is obtained for construction activities under the Environment Act.

Now automatic zoning plan review

With current legislation, an environmental permit must be obtained for most construction activities. This environmental permit then authorizes the activity of "building. Obtaining the environmental permit also entails a planning review, which involves verifying whether the building plan fits within the zoning plan. Obtaining an environmental permit for construction also establishes, in principle, that the building plan complies with the zoning plan or that permission to deviate from it has been obtained with that decision.

Construction activity and environmental plan activity independent activities

With the advent of the Environment Act, the test for construction activities falls into two different legal activities. The construction-related test is called the "construction activity" (Art. 5.1, second paragraph under a Environment Act),[1] and there is also a planning aspect, the "environmental plan activity" (Art. 5.1, first paragraph under a Environment Act).

With the Environment Act, when an environmental permit for construction activity is granted, a planning test will no longer take place in advance. This is a relevant system change. The application for the building activity will only be tested in terms of ensuring safety, protecting health and sustainability and usability (Art. 5.18 Environment Act). That is the construction technical test. By the way, that building test will also change because of the Building Quality Assurance Act. We will discuss that in a later blog.

In addition, the environmental plan can (and will) prescribe that certain activities require a test against the environmental plan. The environmental plan itself will then also contain the rules on the basis of which it will be assessed whether that activity is permitted. In addition, it remains possible to grant omgevingsvergunning for a specific building plan in deviation from the omgevingsplan. These could be activities that in themselves could be permissible within the environmental plan, but for which in that case the conditions are not met. But they can also be activities that are not permitted at all based on the environmental plan.

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Self-request for review of environmental plan

With the Environment Act, an application to build is no longer automatically considered to be a request to test against the environmental plan.[2] It may therefore be the case that the mere permission to build is not sufficient to actually erect the building, because it has not yet been tested against the environmental plan. Therefore, if the Environment Plan prescribes that a permit is required for that activity, permission for the "Environment Plan activity" will also have to be requested when the application for construction is submitted. The legislator did point out that the General Administrative Law Act requires that it be 'promoted' that the applicant be notified that another permission is required. In my opinion, however, it remains the risk of the initiator if something is still overlooked.

Dowry prevents elimination of environmental plan test

Incidentally, it should not be expected that many building activities will suddenly no longer need to be tested against the environmental plan as a result of the advent of the Environment Act. By means of a so-called "dowry", the legislator ensures that construction activities will initially still be subject to a permit requirement for the test against the environmental plan. This is regulated in article 22.26 of the Omgevingswet Implementation Decree.[3] With article 22.29 it is guaranteed that the building plan must fit into the environmental plan and it is regulated that the building plan is tested against reasonable requirements of prosperity. This article corresponds largely to what is currently regulated in Section 2.10 of the Wabo.

Planning test sometimes not needed in future

In the first instance, it will not change under the Environment Act that a building plan will be tested against the building requirements, the planning frameworks and the reasonable requirements of welfare. However, it should already be taken into account that the test against the environmental plan and the requirements of welfare must itself be requested.

The planning review will only change if municipalities decide, based on site-specific circumstances, to make more structures permit-free or to include an information requirement or notification requirement for this. Until then, the assessment framework will remain as it was.

[1] Where this blog refers to the Environment Act, it should be kept in mind that the legislation is still under development. This publication is based on the Environment Act as published in its consolidated version of December 30, 2020.

[2] Parliamentary Papers II 2017/18, 34986, no. 3, pp. 65 & 71.

[3] Version used: Stb. 2020, 400.