State Council puts final halt to unclear 'application' for environmental permit

Over the past year, the State Council has often considered whether or not there was an application for an environmental permit. With some regularity, some developers and property owners try to apply for an environmental permit in a concealed manner. The purpose is clear: They hope that the college will not realize that there is an application for an environmental permit and that a permit will then be issued by operation of law. That judges are not keen on this was already clear, but now the Council of State is putting a stop to these practices.

Case study

In the case before it in the ruling of October 31, 2018(ECLI:NL:RvS:2018:3541), the owner of a property that housed a car dealership had sent a bill to the college, stating that he did not see a future for the car dealership on site and asked the college to cooperate in allowing the existing building on site to be used for regular retail. Compared to previous "applications" that have come up in other proceedings before the Council of State, this was a relatively clear request from the owner of the plot. Nevertheless, the Division makes short work of this letter as well.

Although the usual way to apply for an environmental permit is the Omgevingsloket online (OLO), many rulings have confirmed that it is not mandatory to apply for an environmental permit through the OLO. It is conceivable that an environmental permit may be requested through a letter to the college. This ruling does make it clear that heavy requirements are placed on such a letter.

Judgment of the Council of State

In the first place, the mere communication that planning cooperation is requested is insufficient for the opinion that an application for an environmental permit has been made. The Division adds that even if the letter speaks of an environmental permit, that is still insufficient to speak of an application for an environmental permit.

The determining factor is whether the letter unambiguously and unequivocally states that the intention is to apply for an environmental permit. In the case of a summary and global description of the initiative, this does not exist in any case, the Council of State said.

Conclusion

It is therefore clear from this ruling that the Council of State is not in favor of vague letters that are supposed to pass as applications for environmental permits. Therefore, if a property owner or developer wishes to submit an application for an environmental permit outside the OLO, it should at least be a letter clearly indicating that it is an application, and what exactly the initiative entails. This could be done, for example, with clear drawings and/or a detailed description of the initiative.

If a property owner chooses not to make an application through the OLO,it clearly has appearances against it and the State Council will critically assess whether it is an application.

Thus, given this ruling and the Division's preceding rulings, property owners and developers would be wiser to submit an application for an environmental permit "simply" through the OLO.