After years of delay, the ball is finally in the court and the Environment Act will enter into force on January 1, 2024. To ensure a smooth transition from the current system to the new system, transitional law has been provided for.
Caspar Delissen discusses the most important aspects of transitional law. He takes you through the way in which the current zoning plans are transforming into the environmental plan, the status of existing permits and the possibilities to settle pending procedures under current law. In order to complete projects that are ready to proceed under the current (familiar) law, it is important to be aware of the possibilities to do so until the law enters into force.
Zoning plans become one environmental plan
Under current law, the zoning plan is the central figure in environmental law. Under the Environment Act, the zoning plans will disappear and be replaced by a single environmental plan for each municipality.
Environmental plan by operation of law
Once the Environment Act takes effect, 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, the same zoning plans will then form one environmental plan.
Because an environmental plan has a broadened scope compared to zoning plans - the environmental plan deals with the "balanced allocation of functions to locations," whereas a zoning plan involves the limited review criterion of "good spatial planning," the environmental plan will be supplemented with other regulations that will automatically end up in the environmental plan by operation of law as of Jan. 1, 2024.
Expired regulations
With the introduction of the Environment Act, regulations on various topics that are currently regulated at the state level will expire. To ensure that there is no legal vacuum, transitional law has been provided for these regulations. An important part of that transitional law is the "dowry. This concerns about 600 rules from the Activities Decree, the Building Decree and the Environmental Law Decree (Bor) that will not reappear in the new national rules under the Environment Act.
The rules cover hospitality, retail, construction and, for example, emissions of noise, odor and vibration, among other things. The dowry will be part of the temporary part. It is then up to the municipal councils to weigh up whether and how to include the rules in the final part of the environmental plan.
Entry into force temporary part
The temporary part of the omgevingsplan will come into being immediately after the Omgevingswet enters into force. Municipal councils can start adopting parts of the new environmental plan from then on. The intention is that around 2029 (the date is not yet definite) 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.
APV
Certain regulations will not become part of the environmental plan by operation of law, for example the General Municipal Bye-Law (APV). The municipal council 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.
Freezing during transition phase
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. Locational or thematic rules can be established in the new part of the environmental plan. Decision-making on new developments will take place from the moment the Omgevingswet is introduced only with the application of the new instruments of the law in the new part of the omgevingsplan.
The temporary part of the environmental plan can only be changed by the irrevocability of, for example, zoning plans where the procedure for entry into force has begun.
Existing permits remain in effect
Existing environmental permits granted under current law will in principle become an environmental permit by operation of law under the Environment Act. In some cases, the permit obligation will lapse. The existing permit requirements will then become, insofar as there is a basis for doing so, customization requirements.
Special cases
In a number of rare cases, an activity does not require a permit now, but will after the Environment Act enters into force. For example, for certain environmentally burdensome 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.
Developing under current law
For ongoing proceedings, they will be completed on the basis of current law.
Regular procedure
Decisions on application (environmental permits) will be settled on the basis of current law if the application is submitted before the Environment Act enters into force, i.e. no later than December 31, 2023. Current law will then continue to apply until the decision is irrevocable.
Extended procedure
For ex officio decisions prepared using the extended procedure, such as a zoning plan, the current law continues to apply if the draft decision was made available for inspection before its entry into force.
Act now
If you still want to develop under current law, make sure that an application has been submitted by 2023 and thus before the effective date, or that the competent authority has made a draft zoning, development or amendment plan available for review.
Want to know more about transitional law or developing under current law? Then register for the Transitional Law under the Environment Act course via this link.
