The Environment Act also changes the current system of permit procedures. The new system of the Environment Act aims to be as close as possible to the General Administrative Law Act (Awb). The new system should speed up procedures compared to the current system. However, practice will have to show whether this goal (faster decision-making) will actually be achieved.
Environment Act
This year we are informing you about the consequences of the (likely) entry into force of the Environment Act on July 1, 2022. Among other things, you were previously informed about the environmental plan, coordination options and the test for an application to obtain an environmental permit.
This contribution addresses the question of which preparation procedure applies if you are applying for an environmental permit.
Appropriate procedure
In the creation of the Environment Act, the legislator explicitly recognized the importance of an appropriate preparatory procedure. There are two types of preparation procedures: the regular preparation procedure (title 4.1 Awb) and the uniform comprehensive preparation procedure (section 3.4 Awb)
Under current legislation, many cases require an extensive preparation procedure (which in principle takes six months), such as when obtaining an out-of-plan deviation from the zoning plan that cannot be accommodated.
The legislator experiences this as a bottleneck. In the explanatory memorandum it is explicitly stated: "It should not be a habit that a citizen or company, for no apparent reason, has to wait six months or more before a decision is made on an application for an environmental permit. This applies at least to the bulk of environmental permits (...)".
The legislature has therefore chosen in the Environment Act to change this and make the regular preparation procedure standard in more cases.
Regular preparation procedure is the standard
The starting point in the Environment Act is that environmental permits will be prepared using the regular procedure. This procedure is based on the standard regulation for handling applications for the making of a decision from Title 4.1 Awb. Pursuant to Section 16.64(1) of the Environment Act, the decision period is eight weeks.
Section 16.64(2) of the Environment Act provides for the possibility to extend the decision period once by six weeks, resulting in a decision period of fourteen weeks. The decision to do so must be announced within the initial decision period of eight weeks.
A relevant addition to the premise of decision-making within (in principle) eight weeks is the situation in which the involvement of other administrative bodies is prescribed when making a decision on an application to obtain an environmental permit, see also an earlier contribution of mine on this subject.
In most cases, this involvement is limited to a required advice from another administrative body. Pursuant to Article 3:6 of the Awb, the competent authority can thereby give a deadline within which the advice is expected.
In some situations, in addition to the advisory right, a power of assent also applies. In those cases, the advisory body is given the opportunity to give its assent to the proposed decision. A decision on consent must, pursuant to Article 16.18(1) of the Environment Act, be published within four weeks of the request to do so.
In cases where consent is required, the decision period is not eight but twelve weeks. Thus, for the combination of advice and consent, the regular decision period is automatically extended by four weeks to 12 weeks.
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Extended preparation procedure is exception
The uniform public preparation procedure of Section 3.4 Awb is prescribed for a limited number of activities.
First, this may be the case if an applicant and the competent authority jointly prefer to go through an extensive preparatory procedure. For example, in the case of a large-scale project, which requires complex consideration and in which it is certain in advance that several interested parties will have objections. It may then be advisable to give others the opportunity to submit their views against the proposed decision, so that these views can be taken into account in a final decision (in advance). In a regular procedure, a decision is taken, without prior opportunity for public participation, unless participation is required in advance.
In addition, the law names specific activities for which an extensive preparatory procedure must be followed. This mainly concerns activities, for which, based on international law obligations, it is necessary to include in the preparatory procedure a formalized possibility for the submission of views by anyone, unless prior participation is required.
This is the case, for example, if a particular development (requiring an environmental permit) requires an environmental impact report, or if it involves cases of activities specifically designated in the Environment Decree, such as, for example, a national monument activity or certain discharge activities. If one or more of these activities are part of an application, Section 3.4 Awb must be applied.
But ís the extended procedure also exception?
Initially, the legislature was clear that an extensive preparatory procedure should be followed in as few predetermined cases as possible. Nevertheless, during the legislative process, through the amendment by Smeulders et al. an important exception to this principle was included in the law.
This exception means that a fourth paragraph has been added to Article 16.65 of the Environment Act. This provides that the competent authority may independently declare the extensive preparation procedure of Section 3.4 of the Awb applicable to the preparation of the decision on an application for an environmental permit for an out-of-plan environmental plan activity (the application for a development that deviates from the environmental plan).
The possibility for the competent authority to declare the extensive procedure applicable is thereby limited to an "activity that has or may have significant effects on the physical living environment" and "against which various interested parties are expected to have objections." These are open standards, and the question is how these standards will be interpreted in practice by municipalities.
In conclusion
The legislator is clear that in many cases permit procedures can be shorter. Hence, the regular preparation procedure has been set as the standard and in fewer cases there is an obligation to go through an extensive preparation procedure.
However, the question is how the possibility that the competent authority independently decides to apply an extensive preparatory procedure (after all) will be interpreted. The legislator has set a criterion for this, which gives (too?) much discretion to the competent authority. Whether this will indeed result in faster decision-making in the future will have to be seen in practice.
