What is the bopa?
An environmental plan may include a permit requirement to perform a certain activity. This is called the environmental plan activity. The bopa is an activity that conflicts with the rules of the environmental plan and is not permit-free. The bopa is similar to the off-plan deviation under the Wabo. However, the assessment framework is somewhat different. The criterion 'good spatial planning' has been replaced by 'a balanced allocation of functions to locations' (ETFAL). In addition, a different preparation procedure applies, for example: the regular instead of the extensive. In particular, the bopa is an instrument to enable new spatial developments. Another way to do this is by amending the environmental plan. Given the complex nature of this, in the initial phase of the Environment Act, the bopa will be used in particular. Colleague Mink Oude Breuil described in his blog on priority rules how the environmental plan can still be amended in a simple way.
Case law on the bopa
To date, 19 judgments have been published on the application of the bopa. In all cases it concerns a ruling by a preliminary injunction judge of a district court. This is logical: an application for a preliminary injunction must involve an urgent interest. Thus, in these cases a (preliminary) judgment is rendered more quickly than in regular cases where the processing times at the court are generally long.
The first bopa statement
The District Court of Gelderland had the scoop on March 29, 2024 (Gelderland District Court March 29, 2024 (ECLI:NL:RBGEL:2024:1822)). The case involved an application for a preliminary injunction against an environmental permit granted on March 14 to house refugees in a hotel in Epe. Housing refugees is not allowed under the temporary part of the environmental plan. The college of the municipality of Epe therefore granted an environmental permit for a bopa. The central issue in the proceedings is whether the college could reasonably argue that allowing the accommodation of the refugees meets the criterion of a balanced allocation of functions to locations. The interim relief judge ruled that it did. A spatial substantiation assessed whether disproportionate consequences could be expected for the living and working environment of the applicants. According to the spatial substantiation, this is not the case. The court in preliminary relief proceedings can follow this position. In the opinion of the court in preliminary relief proceedings, the addition of a number of extra sleeping places has only limited consequences for the living and working environment of the local residents. Since sufficient parking spaces will also be provided, the court in preliminary relief proceedings is of the opinion that the college has been able to argue that there is a balanced allocation of functions to locations.
So far, not much substantially different from the Wabo: a spatial substantiation describing the impact on residential and living conditions is considered sufficient justification. The spatial substantiation also recurs in other rulings on the bopa. See for example: Gelderland District Court August 29, 2024 (ECLI:NL:RBGEL:2024:5928)..
Review of balanced allocation of functions to locations
Currently, bopa rulings are primarily about refugee housing. In most rulings, the preliminary injunction judge begins by outlining the legal framework. See, for example: Zeeland-West Brabant District Court August 21, 2024 (ECLI:NL:RBZWB:2024:5780)..
"Article 5.1(1)(a) and (2)(a) of the Ow prohibit the performance of an environmental plan activity or a construction activity, respectively, without an environmental permit. In the Annex to Article 1.1 of the Ow, an out-of-plan environmental plan activity is defined as an activity for which the environmental plan stipulates that it is prohibited to perform it without a permit and which is in conflict with the environmental plan (sub a) or another activity in conflict with the environmental plan (sub b). Pursuant to Article 5.21, second paragraph, sub b, of the Ow, the rules for an omgevingsplan activity are in any case intended to allow the omgevingsvergunning to also be granted with a view to a balanced allocation of functions to locations. Section 8.0a, second paragraph, of the Quality of the Living Environment Decree (Bkl) provides that if an application for an environmental permit relates to an out-of-plan environmental plan activity, it will only be granted with a view to a balanced allocation of functions to locations. A requested environmental permit for an out-of-plan environmental plan activity - other than an environmental plan activity of provincial or national importance - will be refused if one of the grounds for refusal in Article 8.0b, second paragraph, of the Bkl occurs."
The preliminary injunction judge then goes on to discuss how the balanced allocation of functions to locations is tested. This is restrained:
"In deciding whether or not to apply the power granted to it to grant an environmental permit in derogation of the environmental plan, the Municipal Executive has policy discretion and must weigh the interests involved. The administrative judge does not himself decide whether granting the environmental permit is in accordance with a balanced allocation of functions to locations. Based on the grounds for appeal, the administrative judge assesses whether the decision is in accordance with the law. This may include whether the adverse consequences of the decision are disproportionate in relation to the goals to be served by granting the environmental permit."
The court in preliminary relief proceedings then considers the grounds presented against the contested decision and assesses whether the college could reasonably argue that there is a balanced allocation of functions to locations. This way of testing is reflected in many rulings, for example also in the following ruling: Overijssel District Court October 22, 2024 (ECLI:NL:RBOVE:2024:5423)..
What is covered by the "balanced allocation of functions to locations" is discussed, for example, in the decision of the Rotterdam District Court October 15, 2024 (ECLI:NL:RBROT:2024:10701).. This ruling again concerns the housing of refugees. The applicant for a preliminary injunction fears for the (social) safety and nuisance in the surrounding area and believes that her interest and that of local residents will be disproportionately affected. The judge in preliminary relief proceedings is of the opinion that social safety and the expected nuisance are aspects that the Municipal Executive must take into account when assessing whether there is a balanced allocation of functions to locations. In this case, the Municipal Executive has not sufficiently considered these aspects in the spatial substantiation, the decision-making and the weighing of spatial interests in particular. The college is instructed to investigate this further and to substantiate it. The inclusion of the aspects of social safety and the expected nuisance in the decision-making process is not a change compared to the Wro: at the time of the criterion "good spatial planning", social safety and nuisance could also constitute a spatially relevant interest. See in this context, for example District Court of North Holland 27 November 2024 (ECLI:NL:RBNHO:2024:12145) and Gelderland District Court March 26, 2024 (ECLI:NL:RBGEL:2024:1669)..
Assessment against the Quality of the Living Environment Decree
Article 8.0b of the Quality of the Living Environment Decree (Bkl) stipulates that, in addition to the balanced allocation of functions to locations, the application for a bopa must also be tested against the rules of Chapter 5 of the Bkl (and various other regulations, but these will be disregarded in this blog). The interim relief judge of the District Court of Oost-Brabant ruled on October 29, 2024 (East Brabant District Court October 29, 2024, ECLI:NL:RBOBR:2024:5114) on the application of the ladder for sustainable urbanization (Section 5.129g Bkl) in an environmental permit for a fourth gym in Grave. The gist: the college must actively assess whether the requirements of the ladder are met, including the need for a new urban development. This differs from the old law. The interim relief judge noted that Section 8.0b of the Bkl requires a more active assessment of the bopa application than Section 2.12(1)(a)(3) of the Wabo (the out-of-plan variance). Indeed, it follows from Article 8.0b of the Bkl that an environmental permit must be refused if the rules of Chapter 5 Bkl are not met. This requires a more active role of the competent authority, which must first assess whether the requirements set out in Chapter 5 are met before policy leeway arises when granting a permit.
In this case, the preliminary injunction judge sees reason to grant injunctive relief until it is known whether there is a need for the new gym.
Participation
Participation has been presented as an important pillar of the Environment Act. To increase support, the environment must be involved in a project at an early stage. Participation is mandatory in one case: if it is a bopa and if it is a case designated by the municipal council. Indeed, for the bopa, the municipal council can designate cases in which participation is mandatory. Before the Environment Act came into force, there was a lot to do on this subject. How do the courts deal with this? A number of bopa rulings have addressed participation.
For the first time in the ruling of the North Holland District Court March 5, 2024 (ECLI:NL:RBNHO:2024:3117).. The interim relief judge ruled as follows:
"It must be conceded to the applicants that with the entry into force on January 1, 2024 of the Environment Act, citizen participation is a new instrument in the context of decision-making on plans in the living environment. But - contrary to the applicants' apparent assumption - citizen participation is not intended to achieve consensus or unanimous support for decisions in that regard. The purpose of citizen participation is to involve citizens in decision-making at an early stage and to give them a voice in it. This can be done in various ways, for example by organizing information meetings, but does not go so far - however unpleasant this may have appeared to the applicants - as to make their input decisive. Citizen participation as designed in the Environment Act can certainly increase public support, but is not an obligation of result on a decision acceptable to all parties."
In short: participation does not mean consent. In this case, the college did not act unlawfully.
An example of mandatory participation is discussed in the ruling Amsterdam District Court July 25, 2024 (ECLI:NL:RBAMS:2024:4679). The permit holder had to engage in mandatory participation for this project because it was a case designated by the municipal council. The interim relief judge indicated that the legislature, however, did not define when mandatory participation would constitute insufficient participation. The preliminary injunction judge assumes that in cases where participation is made mandatory, the participation must have some meaning. Otherwise, making it mandatory would make little sense.It then depends on the nature of the project and the impact on the environment what participation should reasonably be done. In the first instance, it is up to the college to assess whether the initiator has been able to reasonably suffice with the participation undertaken. Policy can provide insight on how participation can be designed. In this case, the interim relief judge ruled that the Municipal Executive could reasonably decide that the permit holder had engaged in sufficient participation.
In two other judgments (Rechtbank Gelderland 23 August 2024, ECLI:NL:RBGEL:2024:5749 and Rechtbank Den Haag 13 September 2024, ECLI:NL:RBDHA:2024:14503), participation also comes into play. However, those cases involve activities not designated for mandatory participation. The applicants' arguments therefore do not succeed: there cannot be insufficient participation if participation is not mandatory.
Conclusion
After almost one year of the Environment Act, there are a number of examples on how the (amenity) court tests the bopa. Compared to the old law, the first (minor) differences are starting to become clear. Jurisprudence will undoubtedly give further direction on the application of the bopa in the coming period.
To be continued...
