Environmental Law Ghost
While outside the hollowed-out pumpkins were being lit for Halloween, inside the Senate the Omgevingswet ghost presented itself. The ghost came in the form of a motion expressing grave concerns about the introduction of the Environment Act on Jan. 1. In short, a majority of the Senate concluded that the introduction was irresponsible, with the Digital System for the Environment Act (DSO) still facing major implementation problems two months in advance. Although responsible Minister De Jonge and those in favor disagreed on whether postponement is possible under state law, this does suddenly seem to put that option on the table. Nothing is certain in this dossier.
Effects of postponement
A new postponement may have different implications for development practice, depending on whether a building plan is enabled through an environmental permit or a zoning/environmental plan.
Environmental Permit
Many developers intend to submit applications for environmental permits before the Environment Act enters into force on - in principle - January 1 next. These parties will then have a little more time to complete the application, but otherwise the consequences do not seem to be too serious.
If, on the contrary, it was assumed that an application before January 1, 2024 would no longer be met, so that it would be submitted under the regime of the Environment Act - for example, because the regular procedure would then apply - the consequences are somewhat greater. This is because the application would only have to be submitted once the Environment Act had still entered into force, resulting in a considerable delay, or the application would still have to be submitted under the current regime. The latter seems preferable, as the information required for an application under the Environment Act is not materially very different from the information that would also have to be submitted now. Thus, not much extra work is needed to submit the application anyway. The application will then continue to be processed under current law.
Zoning/environmental plan
Available for review before Jan. 1
For zoning plans, postponement offers the opportunity to still submit drafts that it did not seem possible to make available for inspection before January 1 for inspection under the old regime. Several municipalities had the practice that requests for zoning plan reviews from - for example - after July 1 of this year were no longer being processed because of the intended entry into force and lack of capacity. Those municipalities then cannot escape having to get to work as yet. To that extent, the consequences for developers are limited.
After January 1 for review
If a draft environmental plan is currently being worked on and would be made available for inspection shortly after Jan. 1, it does pose problems. After all, an environmental plan (almost) by definition does not comply with the rules that currently apply to a zoning plan. This means that the environmental plan would have to be "converted" back to a zoning plan, and then still be made available for inspection. It is also possible to make a (more urgent) part of the environmental plan possible in advance by applying for an environmental permit to deviate from the zoning plan. This environmental permit can then be incorporated into the draft environmental plan that will later be made available for inspection.
In conclusion
The Environment Act was supposed to take effect in two months. At this stage, one might wonder if the remedy of delay is worse than the disease. On the other hand: better prevention than cure. In any case, these will be exciting weeks for everyone dealing with the Environment Act. But postponement or not: the Omgevingswet ghost is here to stay, for now....
