Netherlands propose nature permit-free status for sustainability upgrades

Why is the government proposing this?

For many companies, innovation is currently difficult due to nitrogen regulations. Changes to (business) activities that lead to nitrogen emissions often require a nature permit, and the competent authorities are reluctant to grant them. The problems have been exacerbated by the rulings of the Administrative Law Division of the Council of State (Division) of 18 December 2024 (ECLI:NL:RVS:2024:4923 and ECLI:NL:RVS:2024:4909). Since those rulings, internal offsetting (offsetting nitrogen deposition after a change with the nitrogen depositions from before) is only possible if the so-called additionality requirement is met (see our blog posts on the 18 December rulings (The Netherlands further locked down? Council of State limits internal offsetting of nitrogen emissions | Stibbe) and our critical reflection on this (A rethink of the additionality requirement | Stibbe in Dutch)). Given the poor state of Dutch Natura 2000 sites, this is usually not possible. This not only has negative consequences for entrepreneurs, but sometimes also, unintentionally, for nature. Sustainability projects that would ultimately lead to a reduction in nitrogen deposition can, in certain cases, be difficult to implement because the competent authorities do not grant environmental permits for Natura 2000 activities. The proposal aims to change this.

The proposal in brief

With the draft Order in Council, the government wants to clarify that sustainability activities that lead to nitrogen emissions are exempt from the environmental permit requirement for Natura 2000 activities (Section 5.1(1) of the Environment and Planning Act (Omgevingswet Ow)). Specifically, the government proposes to include new exemptions from the permit requirement in Article 11.16 of the Living Environment Activities Decree (Besluit activiteiten leefomgeving Bal). Activities that meet the following four cumulative requirements (the exemption criteria) will then be exempt from the permit requirement:

• The measures lead to a reduction in nitrogen emissions through a change to an existing activity, provided that this change does not result in an activity that is different in nature (the current proposal assumes a minimum emission reduction of 30%, but this may change after an ecological assessment);
• The measures do not lead to an expansion of the scope of that existing activity, insofar as this scope is relevant to nitrogen emissions;
• The measures do not have significant negative effects on Natura 2000 areas other than through nitrogen deposition;  
• Insofar as there is a temporary increase in nitrogen emissions during the implementation phase, this must be followed by a permanent reduction. The temporary increase may not exceed a certain period and may not exceed a certain factor of the emission reduction after realisation (the current proposal assumes a maximum increase in nitrogen emissions over a period of three years and by a factor of five, but this may also change after an ecological assessment).

This means that sustainability measures aimed at a permanent reduction in nitrogen emissions in the longer term can be implemented without a permit, even if these measures lead to a limited increase in nitrogen emissions in the short term. For example, if a renovation is necessary to achieve sustainability goals even though that renovation results in nitrogen emissions, that activity may still be a permit-free sustainability activity on the basis of the draft Order in Council. 

Furthermore, a measure only qualifies as a permit-free sustainability measure if the nature of the activity does not change. The government gives the example that if a livestock farmer converts a barn into a caravan site, the nature of the activity changes and it cannot therefore be a sustainability measure. The situation is different if a livestock farmer installs an air scrubber and leaves the barn otherwise unchanged. In that case, the change may be exempt from a permit because the nature of the livestock farming does not change. We believe that for other businesses, too, the nature will only change if the business actually starts doing something different after sustainability measures have been implemented. If a factory is converted to produce the same product in a cleaner way, this criterion will generally be met. On the other hand, the exemption does not apply if sustainability measures are accompanied by an expansion of the activity. It is therefore not the intention to allow permit-free internal offsetting, at least not for activities after the implementation phase. Only when the nitrogen reduction resulting from the sustainability measure after the implementation phase is entirely beneficial to nature can it be exempted from the permit requirement on the basis of this draft Order in Council. 

When are sustainability measures exempt from the nature permit requirement?

The proposal has only just been submitted for consultation, so it may be some time before it comes into force. First, the Council of State will give its opinion on the draft Order in Council, after which it will be submitted to the Senate and House of Representatives (Section 23.5 of the Ow). However, this does not mean that sustainability measures will always require a permit until then. How does this work?

With this draft Order in Council, the government wants to 'clarify' which sustainability activities are already exempt from the appropriate assessment and nature permit requirement. In other words, even without this draft Order in Council, certain sustainability activities may already be exempt from the nature permit requirement. 

The permit requirement only applies to 'Natura 2000 activities' (Article 5.1, paragraph 1 under e Ow). A Natura 2000 activity is defined as an activity involving the implementation of a project as referred to in Article 6(3) of the Habitats Directive that is not directly connected with or necessary for the management of a Natura 2000 site but which, either individually or in combination with other plans or projects, may have a significant effect on a Natura 2000 site. It follows from this that management measures are currently excluded from the nature permit requirement in any case. Management measures are primarily measures that are included in a management plan. However, the Division has confirmed that measures that are not included in a management plan may also be management measures. This may be the case when the (main) objective and the actual effects of the measure are aimed at achieving conservation objectives and preventing the deterioration of nature (ECLI:NL:RVS:2025:2198). According to the Division, it is primarily up to the competent authority to assess whether a certain activity qualifies as a management measure.

In a majority of the Natura 2000 areas in the Netherlands, a reduction in nitrogen deposition is necessary to achieve the conservation objectives and prevent deterioration of nature (ECLI:NL:RBDHA:2025:578). The management of the Natura 2000 areas requires measures to be taken to ensure that reduction. It follows that measures whose main purpose is to reduce nitrogen emissions and deposition and which actually have that effect can be classified as management measures by the competent authorities. When this happens, these management measures are already exempt from nature permits, even without this proposal.

Furthermore, we believe that there are also cases where sustainability measures do not result in a change to a project at all, which means that there is no permit requirement for that reason alone. This is the case where the activity after implementation constitutes a 'continuation of one and the same project'. Jurisprudence of the Court of Justice shows that this criterion is met when there is continuity and identity between the licensed activity and the continued activity, particularly in view of the nature of the activities, the place where they are carried out and the conditions under which they are carried out (CJEU 10 November 2022, ECLI:EU:C:2022:864 (AquaPri)). In our opinion, replacing a combustion plant with the same plant in a technically improved, cleaner version falls under such a continuation and will therefore not require a permit. We would like to point out though that the Division has not yet explicitly confirmed this. However, the Division does consider the use of a different air scrubbing system in combination with a different distribution of chickens across barns to be a change to a project ( ABRvS 23 July 2025, ECLI:NL:RVS:2025:3389 ).

What does this draft Order in Council on permit-free sustainability measures mean for legal practice?

By categorically designating sustainability activities as management measures, it becomes clear that none of these measures would be subject to a permit requirement. As a result, administrative bodies will not have to assess on a case-by-case basis whether or not a sustainability measure qualify as a management measure, taking into account the main objective and the actual consequences for conservation objectives and the prevention of deterioration. The draft Order therefore provides clarification for companies that want to become more sustainable but are unable to do so due to nitrogen regulations. 

However, we cannot fully understand the government's choice of this form, namely by amending Article 11.16 of the Bal. As indicated above, management measures are exempt from the permit requirement because they do not fall under the definition of a Natura 2000 activity. Article 11.16 of the Bal exempts specific Natura 2000 activities from the permit requirement. When a sustainability measure is classified as a management measure, the question of whether an activity qualifies as a permit-free Natura 2000 activity does not arise: after all, it is not a Natura 2000 activity. 

In our view, a more logical alternative would be to amend the definition of 'Natura 2000 activity' in Annex 1 to the Environment and Planning Act. In addition to what is already in the Act, it could be included that management measures are in any case understood to mean sustainability measures that meet the four exemption criteria of the proposal. A disadvantage of this route is, of course, that the Act would have to be amended, which would take longer. However, this would not only achieve the objectives of the proposal, but also keep the structure of the Environment and Planning Act intact, which we consider to be an advantage.