This post is part of the Environment and Planning Act blog series. In the run-up to the Environment and Planning Act (the Act) that will enter into force on 1 January 2024, we each time highlight a specific topic of the Act in this blog series.
What is the dowry?
The legislature uses the term 'dowry' to refer to the general state rules that will automatically be added to the environmental plan when the Act enters into force. As of 1 January 2024, every environmental plan will have a Chapter 22, which temporarily contains the dowry rules (among other things). These are rules about building and environmental activities (the latter being referred to as “environmentally harmful activities under the Act”) that under the old law are regulated at state level, such as the Besluit omgevingsrecht (Living Environment Law Decree) and the Activiteitenbesluit milieubeheer (Activities Environmental Management Decree). Under the Act, these rules are incorporated into the environmental plan. They are added to the temporary part of the environmental plan through the dowry. During the transition phase, municipalities can adjust these rules to their own preferences (which we discuss below). The Act also has a dowry that will be included in the water board bylaw by operation of law. The dowry for the water board bylaw will not be addressed in this blog, but we will address it in a later blog in this series (about the Act and water).
Why is there a dowry?
The Act stands for more flexibility and rules at local level. When the Act enters into force, the legislature will make it possible through the dowry to regulate activities at local level that are currently regulated at state level.
Because rules are transferred from state level to the local level, municipalities must incorporate the rules. To avoid a regulatory 'gap' when the Act comes into force, the dowry automatically becomes part of the so-called 'temporary part' of the environmental plan. Thus, the dowry also acts as transitional law. Municipalities can then decide for themselves whether they want to adopt the rules from the dowry in full or include replacement rules in the new part of the environmental plan. They do this during the transition phase.
The transition phase: from state to local rules
The dowry is included in the temporary part of the environmental plan. The temporary part of the environmental plan consists of (i) all existing spatial plans within a municipality; and (ii) the dowry (Article 22.1 of the Act). The moment the Act enters into force, the transition phase begins, during which municipalities have until 1 January 2032 to convert the rules from the temporary part of the environmental plan into rules in the new part of the environmental plan. Municipalities may adopt the dowry rules, but may also scrap rules or draw up replacement rules. Importantly, the new part of the environmental plan must comply with Article 4.2(1) of the Act: the rules must be necessary for a balanced allocation of functions to locations. Moreover, the rules must comply with the instruction rules for environmental plans included in, for example, Chapter 5 of the Living Environment Quality Decree. The instruction rules state, for example, that safety risks and certain distances must be taken into account when allowing vulnerable buildings. Not all rules in the dowry will fully comply with the instruction rules in the Living Environment Quality Decree when the Act comes into force (Parliamentary Papers II 2017/18, 34986, no. 3, p. 326). An example is the instruction rules for noise vibrations (Article 188.8.131.52 of the Living Environment Quality Decree). If the dowry rules are adopted unchanged in the new part of the environmental plan, the level of protection will remain the same as in the current Activities Environmental Management Decree, and the environment plan will not contain any rules on vibrations arising from the Living Environment Quality Decree, such as the regulations on the repeated occurrence of vibrations (Article 5.87a of the Living Environment Quality Decree). The Explanatory Memorandum to the Act does not contain an exhaustive list of dowry rules that do not comply with instructional rules. It is therefore important for municipalities to carefully observe the instruction rules in the Living Environment Quality Decree when converting dowry rules to the new part of the environment plan.
Converting the rules from the dowry to the new part of the environmental plan is done by decision adopting or amending the environment plan (Article 22.2(2) of the Act). As with zoning plans, anyone may submit opinions on the draft of the decision, after which the municipal council definitively adopts the decision. This decision may be appealed to the Administrative Judicial Division of the Council of State. Citizens and companies thus have the opportunity to appeal against the choices made by the municipality in implementing the dowry rules. The legislature deliberately chose this option: converting the rules by appealable decree provides an incentive to fully adapt the dowry rules to the location-specific circumstances and needs of municipalities (Parliamentary Papers II 2017/18, 34986, no. 3, p. 71). If, before the end of the transitional phase, municipalities have not yet finished converting the dowry rules to the new part of the environmental plan, the dowry rules remain valid (Article 22.6(3) of the Act, explained in more detail in (Parliamentary Papers II 2017/18, 34986, no. 9, p. 23).
Which topics and rules are part of the dowry?
The dowry contains rules on building and construction and environmentally harmful activities. Logically, these are not rules for these activities that have already been laid down at national level in the Besluit bouwwerken leefomgeving (Structures (Living Environment) Decree) and the Living Environment (Activities) Decree. Instead, it concerns subjects not included in these decrees, where municipalities have more freedom to set certain rules. We discuss the rules for building and for environmentally harmful activities below.
Building and the dowry
The dowry contains rules on the building of structures (Article 22.2). The main rule is that there is a permit requirement for an environmental plan activity relating to structures: an environmental permit is required to carry out a construction activity and to maintain and use a structure (Article 22.26 of the environmental plan). There are two exceptions to this rule.
1) The permit requirement does not apply to the structures listed in Article 22.27 of the environmental plan. This includes, for example, a small extension in the rear yard area, a small dormer on the front or side façade, or a swimming pool. Although no environmental plan activity permit or other permit is required for these activities, all the rules in the environmental plan must be complied with. If those rules require a permit, or the structure violates those rules, the initiator must still apply for a permit. These structures correspond to the structures in the old Article 3 of Annex II to the Besluit omgevingsrecht (Living Environment Law Decree), with some minor differences and an addition: the yard and plot separation between 1 and 2 metres. We therefore expect that case law under the old law regarding these structures will remain relevant.
2) The permit requirement does not apply to the structures listed in Article 22.36 of the environmental plan. These are the yard and plot separation of between 1 and 2 metres and the accessory building, which are also included in Article 22.27 of the environmental plan, with some additional requirements. One difference with Article 22.27 of the environmental plan, however, is that these structures are considered to be in compliance with the environmental plan by operation of law. These structures are therefore completely permit-free. This article includes some of the structures in the old Article 2 of Annex II to the Living Environment Law Decree, such as the accessory building and the fence between plots. The other structures from Article 2 of Annex II to the Living Environment Law Decree are included in Article 2.29 of the Living Environment (Activities) Decree and are thus permit-free nationwide, just as under the Living Environment Law Decree. These include the dormer in the rear or side roof plane (not facing publicly accessible areas) and garden furniture. As the wording and dimensions of these structures are the same as under the old law, we expect case law under the old law on the interpretation of these structures to remain relevant under the Act as well. Note that it follows from the opening words of Article 22.36 that these structures do have to comply with the former state regulations included in the temporary part of the environmental plan, such as the Bouwbesluit (Buildings Decree 2012), the Woningwet (Housing Act) or the Activities Environmental Management Decree. Thus, the repressive requirement for building standards (Article 22.7 of the environmental plan) applies in full: if a structure seriously violates the reasonable requirements for building standards, a permit is still required.
Environmentally harmful activities and the dowry
Under the Act, the establishment concept will be replaced by the environmentally harmful activity (in dutch: milieubelastende activiteit, mba). With the dowry, the environmental plan (in Article 22.3) will soon contain rules on environmentally harmful activities relating to noise, vibration and odour, among other things. Under the old law, those rules can be found in the Activiteitenbesluit (Activities Decree), among other places. Although many of the rules from the Activities Decree are included in the Besluit activiteiten leefomgeving (Living Environment Activities Decree), a number of rules are part of the environmental plan and those activities are therefore regulated at local level. These include, for example, environmental rules of activities related to catering establishments, offices, supermarkets, car parks, riding stables, the storage of solid manure, and small-scale animal keeping (Stb. 2020, 400, p. 991). There are also former central government rules on soil protection that will enter the environment plan.
Importantly, the rules in the environmental plan do not apply to the environmentally harmful activities designated in Chapter 3 of the Living Environment Activities Decree as requiring a permit, for which, under the old law, permit requirements already apply to those specific subjects. For those activities, the permit requirements take precedence (Article 22.1 of the environmental plan). Moreover, Article 22.3 of the environmental plan determines for each subject to which environmentally harmful activity the rules contained in it apply.
An example is the rules on noise, included in Article 22.3.4 of the environmental plan. The rules on noise apply to noise caused by an activity on or in a noise-sensitive building. Noise-sensitive buildings are buildings with a residential function, educational function, health function or meeting function for childcare with sleeping area (Article 3.21 of the Living Environment Quality Decree). Excluded from this article are, among other things, noise-sensitive buildings on zoned industrial estates or on an industrial estate to which noise production ceilings apply as environmental values, (Article 22.54 of the environment plan). This is the case because higher values apply to those noise-sensitive buildings under the old law under the Wet geluidhinder (Noise Abatement Act). The term 'zoned industrial estate' is no longer used under the Environment and Planning Act. Instead of establishing zoned industrial estates, municipalities must establish noise production ceilings for industrial estates where designated activities are carried out (Article 2.11a of the Act). The regulations in question are included in Article 184.108.40.206a.2 of the Living Environment Quality Decree. For existing industrial estates, the Noise Abatement Act remains in force until the competent authority establishes noise production ceilings as an environmental value (Article 3.6 of the Aanvullingswet geluid (Noise Supplementary Act under the Environment and Planning Act). The term 'zoned industrial estate' is therefore still defined and used in the environmental plan, to safeguard the legal status of businesses on existing zoned industrial estates and the dwellings around them, as the legislature emphasises in the Explanatory Memorandum (Stb. 2020, 400, p. 957). The maximum values for noise due to activities (other than those to which specific noise values apply, such as wind turbines) on noise-sensitive buildings are set out in Article 22.63 of the environment plan. The noise values due to activities that apply to the facades of noise-sensitive buildings correspond to the values for the facades of sensitive buildings as included under the old law in Article 2.17 of the Activities Decree.
With the dowry, the environment plan also contains a specific duty of care for environmentally harmful activities, included in Article 22.44. It follows from this that whoever carries out an activity and knows or may reasonably suspect that that activity may have adverse effects on the environment, safety and health must mitigate these effects as far as possible or take measures to prevent the effects. This duty of care corresponds to the duty of care under the Living Environment (Activities) Decree and does not apply to environmentally harmful activities designated in Chapter 3 of that decree. This duty of care therefore does apply to environmentally harmful activities not designated in that decree, such as the aforementioned hospitality industry, offices and supermarkets. This duty of care applies in addition to the other rules and permit obligations in the environment plan. If the duty of care is breached, the municipal executive may take enforcement action. It follows from the explanation of Article 22.44 that this is only obvious in the event of an unmistakable breach of the duty of care (Stb. 2020, 400, p. 855). Nevertheless, it is important for companies to be aware of the duty of care. It is advisable for companies to check carefully whether the duty of care provides sufficient clarity for situations that are, for instance, sensitive. In the event of ambiguity as to whether or not the duty of care is met, the municipal executive may (at a company’s request) draw up bespoke regulations in which the municipality lays down in concrete terms the duty of care with regard to a specific subject.
As stated above, each municipality may adapt the rules from the dowry, insofar as that is in keeping with the rules that apply at the national level and the instruction rules from the Living Environment Quality Decree. Companies should therefore be aware that the environmental plan rules on building and environmentally harmful activities to be converted from the dowry may ultimately differ from one municipality to another.
This post is part of the Environment and Planning Act blog series. An overview of all the blogs in this blog series can be found here.
More information on the background and creation of the Environment and Planning Act can be found on our webpage www.my.stibbe.com/mystibbe/pgo. Our webpage includes the consolidated version of the Environment and Planning Act, where a relevant explanation based on the legislative history is provided for all the relevant articles of the law.