This post is part of the Environment and Planning Act blog series. In this blog series, we each time highlight a specific topic of the Environment and Planning Act in the run-up to its entry into force on 1 January 2024.
In this blog post, we describe the regulation of participation in the preparation of decisions under the Environment and Planning Act (Omgevingswet, the ‘Act’). As far as the substance of participation is concerned, little will change as of 1 January 2024. In short, in most cases the Act does not prescribe how participation should be set up, only that the competent authority must describe how participation has been handled. The way in which decisions based on environmental law have to be justified and explained is therefore expanded. We will elaborate on this below.
In this blog post, we address only participation in the form of public participation; financial participation falls out of the scope of this blog. By financial participation, we mean situations where third parties are financially involved with a project, for example by sharing in the profits generated by a wind farm. The coming into force of the Act will not change the current situation regarding financial participation. For each Regional Energy Strategy (Regionale Energiestrategie) and per project, decentralised competent authorities will be able to make agreements on financial participation that may differ from the current system, but this will not be regulated nationally (see this Parliamentary Letter of 1 September 2021). Regulation through law-making has been left out to facilitate customisation on the decentralised level.
Participation in the form of ‘stating one's view’ is supposed to contribute to (i) improving the quality of decision-making and (ii) creating support for decisions. Participation requirements apply to environmental decision-making. These requirements are based on European and international law, in particular the Aarhus Convention and EU implementation regulations of this convention. The Court of Justice ruled in the Varkens in Nood judgment (see more extensively this blog post on that subject) that Dutch environmental law was partly in violation with the Aarhus Convention. The legislature currently prepares legislation to undo these violations (see also this blog post).
Principles of legislation
Participation is a ‘cross-cutting theme’ within the Act, according to the legislature (Stb. 2018, 209, p. 66). The Act and the Decrees based on the Act distinguish two forms of participation: i) participation within the meaning of the extensive preparation procedure (uniforme openbare voorbereidingsprocedure, ‘uov’), and ii) forms of so-called 'early' participation. In this blog we will explain both forms of participation.
Starting point: uov
The Act regulates participation in the preparation of decisions mainly by prescribing the uov. This procedure is set out in Section 3.4 of the General Administrative Law Act (Algemene wet bestuursrecht ). The uov enables public participation in draft decision-making by enabling everyone to submit their views (zienswijzen) on the draft decision. The uov is used in the preparation of, among others:
Environmental plans (omgevingsplannen, Article 16.30(1) of the Act, see this blog post from this series);
Environmental- and water board ordinances (omgevings- en waterschapsverordeningen, Article 16.32 of the Act);
Environmental visions (omgevingsvisies, Article 16.26 of the Act, see this blog post from this series);
Designated environmental permits (Article 16.65(1)(a) of the Act in combination with article 10.24 of the Environmental and Planning Decree (Omgevingsbesluit, the "Decree")), e.g. permits for the environmentally harmful activities including an IPPC-installation or Seveso-establishment and for Natura 2000-activities;
Other environmental permits, if the applicant has requested or consented to the application of the uov (Article 16.65(1)(b) of the Act);
Environmental permits for an environmental plan activity not covered by the environmental plan, insofar as the competent authority has decided to use the uov (article 16.62(3) of the Act);
Project decisions (article 16.70 of the Act, see this blog post from this series).
Article 16.23(1) of the Act stipulates that anyone may submit their view on a draft decision, except on draft condonement decisions and draft expropriation decisions (gedoogplichtbeschikkingen and onteigeningsbeschikkingen, see Article 16.23(2) and 16.23(3) of the Act). Unless otherwise stipulated, the uov also applies to amendments and revocations of decisions to be prepared with the uov (Article 16.24(1) of the Act).
Public participation in an early stage
The preparation procedure of certain decisions regulated by the Act entails participation before the uov is applied. The level of detail of these procedures is limited, leaving much room for customisation. We will explain these procedures on 'early' participation in more detail below.
In the preparation of environmental plans (Article 10.2 of the Decree), water board and environmental ordinances (Article 10.3(a)(b) of the Decree), environmental strategies (Article 10.7 of the Decree) and programmes (Article 10.8 of the Decree), the so-called 'justification requirement of early public participation' applies. This requirement means that, when adopting the decision in question, the competent authority must explain how citizens, companies, civil organisations and administrative bodies were involved in the preparation and what the results were. The competent authority must furthermore describe how the applicable decentralised participation policy has been applied in the preparation of the decision. Neither the Act nor the Decree contain an explicit obligation for decentralised administrative bodies to draw up participation policies. However, the mentioned articles do imply that decentralised authorities are obliged to draw up these participation policies. For environmental plans, the competent authority must also explain in advance, more specifically when the authority publishes its proposal for the decision, how potential participants will be included in the preparation procedure (Article 10.2(1) of the Decree).
The municipal council (gemeenteraad) can designate activities in which public participation is required before an applicant can submit an application for an environmental permit for an environmental plan activity not covered by the environmental plan for which the municipal executive (college van B&W) is the competent authority (Article 16.55(7) of the Act). According to the legislature, ‘it can be reasonably expected from the competent authority to adopt policy regarding this required public participation’, to make clear to potential applicants how they must organise public participation in order to submit an admissible application (Stb. 2020, 400, p. 1218). In all other cases, the applicant is not required to organise early public participation in the preparation of an environmental permit. Article 7.4 of the Environment and Planning Regulation (Omgevingsregeling) provides that the applicant of an environmental permit must indicate with the application whether participation was organised and, if so, how participation has been organised and what its results were. The mentioned decentralised participation policy cannot impose additional participation obligations on applicants; the regulation in the Environment and Planning Regulation is exhaustive (Stb. 2020, 400, p. 1218).
Whereas early participation is limitedly elaborated in the preparation procedures of the decisions mentioned before, the project decision procedure contains a more substantial early participation regulation. The project decision may be used for complex projects of public interest and can contain all the permits needed for such a project. The project decision procedure is regulated in Section 5.2 of the Act and Section 5 of the Decree. The procedure is similar to the current route decision procedure (tracébesluitprocedure). In this blog, we will focus specifically on the participation requirements in the project decision procedure (for a detailed description of the project decision procedure, see this blog from this series).
The competent authority must elaborate on the early participation process in its notification of the intention to carry out an exploration of a possible existing or future task in the physical living environment (Article 5.3(1) of the Decree). Anyone has the right to submit a solution to this task and can also request the competent authority to request an independent expert to advise about the submitted solution (Article 5.47(3) of the Decree in combination with Article 5.48(2) of the Decree). This right is not included in the route decision procedure. It is up to the competent authority to determine whether a proposed possible solution "should reasonably be considered" (Article 5.48(3) of the Act).
After this preliminary phase, in principle, the uov is followed (Article 16.71(1) of the Act). However, if the competent authority first takes a preferential decision (voorkeursbeslissing) after the exploration, the uov is followed twice: in the preparation of the preferential decision, which is not subject to appeal to the administrative court (Article 16.70 of the Act) and then in the preparation of the project decision.
Impact on competent authorities and initiators
In light of the above, we doubt that the Act will significantly change the participation process in the decision-making procedures. After all, the uov will still apply in the majority of the decision-making procedures. In most cases, competent authorities and/or applicants for environmental permits are free to determine the exact way in which they organise early participation. They subsequently only have the legal obligation to explain how early participation took place and what results of the participation process were. It is therefore difficult to predict to what extent early participation will contribute to more support for decisions and to better quality decisions. This is evens the case for the project decision procedure, because the competent authority there too has considerable discretion with regard to the organisation of the early participation process.
It will furthermore be interesting to follow the development of case law of administrative courts regarding grounds of appeal related to unsound early participation. Under the former environmental laws, defects in an informal participation process occurring before the start of the formal decision-making process could not affect the lawfulness of the decision (Council of State 16 January 2008, ECLI:NL:RVS:2008:BC2320, paragraph 2.2.1). This case law no longer seems applicable, now that early participation – however little elaborated – is formally included in the decision-making processes prescribed by the Act. However, this does not necessarily mean that decisions will then always be annulled. We can imagine that violations, mainly minor ones, of early participation obligations are being passed over based on Article 6:22 Awb, especially if the uov is still followed after early participation.
In this blog post, we described how the Act regulates participation in environmental decision-making. Compared to the former environmental law regime, little has changed in terms of specific participation obligations: the uov still applies in many cases. To the extent that broader participation obligations apply, there are few substantive requirements. In most cases, the only extra obligation is to explain how early participation was organised in the procedure.
This post is part of the Environment Act blog series. An overview of all blogs in this blog series can be found here.
Would you like to find out about the background and creation of the Environment Act? Consult our webpage www.my.stibbe.com/mystibbe/pgo. Our webpage includes the consolidated version of the Environment Act, where all sections of the law are provided with a relevant explanation based on the legislative history.