Frequently asked questions related to Nitrogen and the PAS

A line through more than a thousand building plans and billions in damages, and all because of one ruling by the Council of State. Naturally, this raises the necessary questions. We have answered and listed the most frequently asked ones for you.

Can I still realize my project?

To do so, view our Flowchart Nitrogen Testing Construction Projects.

What is the PAS

PAS stands for Programmatic Approach to Nitrogen (the Nitrogen Approach Program 2015-2021). This is a program that was introduced to protect natural areas from nitrogen deposition on the one hand and to allow activities that actually cause nitrogen deposition on the other. The intention was to use national measures to save more nitrogen emissions than the activities allowed under the PAS cause. For this reason, the PAS includes many measures that should lead to a decrease in nitrogen deposition on nitrogen-sensitive habitat types and species. Those measures should then provide room for economic development. Against that background, the PAS basically included the following framework for projects:

• Een stikstofdepositie van <0,05 mol/ha/jr als gevolg van het project en daarmee samenhangende projecten is meldings- en vergunningvrij;
• >0,05 en <1,00 mol/ha/jr als gevolg van het project en daarmee samenhangende projecten: meldingsplichtig; en
• >1.00 mol/ha/yr due to the project and related projects: permit required.

This allowed many projects to be realized.

Why was the PAS drafted?

Overloading with nitrogen deposition has for years been a problem for achieving the conservation objectives for nitrogen-sensitive habitat types and species in many Natura 2000 areas, on the one hand, and enabling economic developments that cause nitrogen deposition on those areas, on the other. In order to avoid having to conduct time-consuming and costly research for every project and to provide clarity, the PAS was drafted.

What does the RvS ruling on the PAS mean?

On May 29, 2019, the RvS ruled that the PAS may not be used as a basis for granting permission for activities that lead to an increase in nitrogen deposition at the site of nitrogen-sensitive habitat types in a Natura 2000 area. In short, the reason is that the PAS does not meet the strict requirements of the Habitats Directive. Indeed, it follows from this directive that there must be no scientific doubt that the measures will actually have beneficial effects on Natura 2000 areas. Moreover, this certainty must exist in advance. The PAS does not meet these strict requirements.

What are the implications of the RvS ruling on the PAS?

Consequences of the May 29, 2019 RvS ruling

• For zoning plans and Wnb permits that are based on the PAS but are irrevocable, the ruling has no immediate consequences. However, preliminary questions have been raised as to whether it can be maintained that action may be taken in accordance with an irrevocable permit that conflicts with European law. Moreover, the Wnb includes the possibility to annul a permit for conflict with the Habitat Directive. Meanwhile, the District Court of East Brabant(ECLI:NL:RBOBR:2019:4830) also ruled that a permit - which was based on the PAS - had rightly been revoked under Article 5.4(2) of the Wnb.
• Zoning plans and Wnb permits that are based on the PAS will, in the event that it is argued in proceedings that they are wrongly based on the PAS, go under.
• All activities that were notification and/or permit-free under the PAS will still require a permit if they lead to significant impacts (or cannot be excluded in advance) on the conservation objectives of Natura 2000 areas.
• The PAS may no longer be used as the basis for zoning plans for new projects and/or as justification that no Wnb permit is required.

If the building plan is or will be realized, can another problem arise?

If a building plan has been or will be implemented that leads to an increase in nitrogen deposition on a sensitive habitat type in a Natura 2000 area, the mere fact that the zoning plan based on the PAS and/or an irrevocable environmental permit based on the PAS has been granted is not enough. It will either have to be substantiated that no permit under the Nature Conservation Act is needed, or it will still have to be granted. It remains to be seen to what extent enforcement action can be expected. Provinces have not taken active action in recent months and Overijssel has explicitly stated that it will not do so even now. If the project was granted a permit prior to 2015 (before the PAS came into effect), then the May 29, 2019 RvS ruling will have no consequences.

What is the consequence if a plan is prepared based on the PAS, but the Natura 2000 site has no nitrogen-sensitive habitat types?

In the ruling of August 21, 2019(ECLI:NL:RVS:2019:2835), the RvS ruled that in such a case there is no conflict with the Nature Protection Act. The Nature Protection Act then does not prevent the realization of the project.

Who will bear the costs resulting from the resulting delay or inability to fulfill agreements made?

Read Marloes' article Beeren.

What does the provinces' Netting Policy Rule mean?

The provinces have jointly arrived at policy rules regarding internal and external netting. These policy rules are intended to provide concrete guidance for offsetting. These policy rules caused a great deal of commotion, among other things because external netting involves a 30% skimming. Gelderland, Friesland, Drenthe and Overijssel have now decided not to apply this policy rule (for the time being).

Quickscan zoning plan

Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.