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 a project decision?
A project decision is a concrete authorization to carry out and operate or maintain a "project". Although the project concept in Annex 1 of the Act is very broadly defined (a. the construction of buildings, installations or works; b. other activities that modify parts of the physical environment, including activities for the extraction of minerals), the project decision is intended in particular for the implementation of complex projects of public interest (Parliamentary Papers II 2013/14, 33962, no. 3, p. 174). A project decision may be issued at the level of the central government, provinces and water boards for, among other things, the construction of roads, high-voltage power lines, wind farms or the strengthening of primary flood protection systems. A project decision may also be issued for private initiatives that are consistent with the achievement of public objectives in the physical living environment (such as wind farms) (Parliamentary Papers II 2013/14, 33962, no. 3, p. 175). Like an environmental permit, a project decision can be used to grant a specific permit.
Articles 5.44 to 5.55 of the Act provide the basis for a project decision. The rules relating to the procedure for the adoption of a project decision are contained in Articles 16.70 to 16.73 of the Act.
The advantages that the project decision should offer are that it involves concentrated and coordinated decision-making, which can include all approvals for a project in a single decision, which then directly amends the environment plan and can be appealed in a single instance Afdeling Bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State) and which appeal should be decided by the Administrative Law Division of the Council of State in a relatively short period of time. These features are discussed in more detail below.
Authority for project decisions
The competent authorities for issuing a project decision is (Article 5.44(1) of the Act):
- in the case of representation of a national interest: the minister concerned, in consultation with the Minister for Housing and Spatial Planning (Parliamentary Papers I 2021/22, 34986, no. DC, pp. 107-108);
- The Minister(s) concerned may delegate the power to issue a project decision to the Provincial Executive (Article 5.44b of the Act).
- in the case of representation of a provincial interest: the Provincial Executive; or
- in the case of the management of water systems assigned to the water board: the executive committee on behalf of the water boards (Article 5.44 of the Act);
- A project decision by a water board is subject to the approval of the Provincial Executive of the province in which the project is to be carried out (Article 16.72 of the Act).
A decision on a project cannot be taken at the level of the municipality. However, municipalities may apply parts of the project procedure for municipal projects of public interest for the purpose of amending the environment plan (Article 5.55 of the Act). One reason for doing so is that the Administrative Law Division of the Council of State then decides on an appeal against this environmental plan within six months (extendable up to three months) of receiving the defense (Article 5.55 in conjunction with Article 16.87 of the Act). It is important to note that the project procedure can be used only for the amendment of an environment plan, not for the granting of an environmental permit. For granting an environmental permit, it is possible to apply the coordination scheme as amended by the Act and as set out in Chapter 3.5 of the Algemene wet bestuursrecht (General Administrative Law Act) in conjunction with Article 16.14a of the Act.
Predecessors of the project decision
With the project decision, the Act creates an important – in part new – instrument for the national, provincial and water authorities to grant concrete permission for activities in the physical living environment. The project decision replaces:
- the powers to adopt a national or provincial land use plan under the Wet ruimtelijke ordening (Spatial Planning Act);
- the application of the coordination scheme under the Spatial Planning Act;
- the project plan under the Waterwet (Water Act); and
- the routing decision under the Tracéwet (Transport Infrastructure (Planning Procedures) Act).
Obligatory project decision
The adoption of a project decision is mandatory under the Act in certain cases, just as the coordination procedure or an incorporation plan was mandatory under the preceding law. In brief, these are the cases listed in:
- Article 5.46 of the Act
- construction of motorways, highways, railways, primary water protection works;
- Elektriciteitswet 1998 (Electricity Act 1998)
- Certain production facilities for the generation of sustainable energy, such as wind farms and infrastructure for electricity (Articles 9b(1), 9c(1) and 20a(1) and (2) of the Electricity Act 1998);
- Gaswet (Gas Act)
- the construction or expansion of gas infrastructure (Article 39b(1) of the Gas Act); and
- Mijnbouwwet (Mining Act)
- the construction or extension of mining installations and pipelines (Article 141a(1) of the Mining Act)
The project procedure
How does this work and how to proceed? One of the distinguishing features of the project decision is the preparatory procedure, which explicitly assigns a role to early public involvement through a prescribed participation process. The procedure for adopting a route decision under the Transport Infrastructure (Planning Procedures) Act is a model for this process. The project procedure consists of the following steps:
1. notifying the intention to explore (Article 5.47 of the Act):
- intention to carry out an exploration of a possible existing or future issue in the physical environment, where a preference decision may or may not be made prior to the adoption of a project decision; and
- In certain cases, a preliminary decision is mandatory (see Article 5.4 of the Omgevingsbesluit (Environment and Planning Decree);
- any person is given the opportunity to participate in the plan and to propose possible solutions to the issue to which the plan relates, taking into account the principles laid down by the competent authority for the reasonable consideration of such solutions (Article 5.47(3) of the Act).
2. Conduct of the exploration (Article 5.48 of the Act):
- the competent authority collects knowledge and information on the nature of the issue, the developments relevant to the physical environment and possible solutions to the issue;
- those persons who have proposed a solution in response to the proposal may request the competent authority to seek the advice of an independent expert on the proposed solutions (Article 5.48(2) of the Act). Of course, specifically in response to public input, the competent authority may also request an expert opinion on its own initiative; and
- the competent authority must explicitly decide whether the proposed solutions should be reasonably considered.
3. Possibly: a preferential decision (Article 5.49 of the Act):
- in cases where it is not obliged to do so, the competent authority may decide whether or not to take a preferential decision before taking a decision on the project;
- a priority decision may have the aim that the project will be implemented, a solution will be found without the project, a combination of the above, or no solution will be developed;
- the preferential decision is subject to the extensive preparatory procedure (Article 16.71 of the Act and Chapter 3.4 of the General Administrative Law Act) and the preferential decision may be challenged (Article 16.23 of the Act);
- a preferential decision qualifies as a plan or programme, and may therefore be subject to an environmental impact assessment (Article 16.4.1 of the Act); and
- a preferential decision may not be appealed to the administrative courts (Article 8.5 General Administrative Law Act).
4. Adopting the project decision (Articles 5.51 et seq. of the Act):
- the extensive preparatory procedure of Chapter 3.4 of the General Administrative Law Act (Article 16.71 of the Act) also applies to the preparation of the project decision. Prior to adoption, a draft project decision is submitted for public consultation, against which comments may be submitted;
- if the project decision is subject to an environmental impact assessment (Annex V of the Environment and Planning Decree), additional procedural rules apply (Article 16.4.2 of the Act) and, for example, the environmental impact report must be made available for inspection together with the draft decision;
- the project decision describes how citizens, companies, civil society organizations and administrative bodies have been involved in the preparations, and what the results of the exploratory study are. This must include at least the solutions proposed by third parties and any expert opinions on them (Article 5.51 of the Act);
- a project decision directly modifies the environment plan (Article 5.52 of the Act) and may contain evaluation rules. The central standard ‘evenwichtige toedeling van functies aan locaties’ (balanced allocation of functions to locations) applies (Article 5.53 (1) of the Act);
- if expressly provided for in the project decision, the project decision may be deemed to be an environmental permit or a decision that directly amends the environment plan, and may therefore contain assessment rules that are incorporated into the environment plan (Article 5.52(1) and 5.53 of the Act). At the same time, a project decision may stipulate that the project decision is valid as an environmental permit (Article 5.52(2) of the Act) or as a decision as specified in the Environment and Planning Decree (Article 5.7 of the Act, e.g. determination of a noise production ceiling, a measure regulation or a traffic decision). A project decision can thus contain (almost) all the permits required for the implementation of a project;
- what is special is that a project decision may also include a decision to dispense, on compelling grounds, with lower regulations that disproportionately hinder the implementation of a project decision (Article 5.53(3) and (4) of the Act). According to the legislature, this power should be used only in extreme cases (Parliamentary Papers II 2013/14, 33962, no. 3, p. 182). A decision of this kind can still be taken even after the project decision has already been adopted;
- finally, a project decision may stipulate that the project decision may be elaborated within the framework of the conditions laid down for this purpose in the project decision (Article 5.54 of the Act).
Once the competent authority has issued the project decision, the first and only place to appeal is the Administrative Law Division of the Council of State. It should be noted that, in order to speed up the appeal procedure, it is not possible to submit grounds for appeal after the appeal period has expired (Article 16.86 of the Act). Appeals against a project decision or against a decision of the Provincial Executive approving a project decision taken by a water board must be decided within six months of receipt of the statement of defence (with the possibility of a one-time maximum extension of three months) (Article 16.87 in conjunction with Article 16.72 of the Act).
Implementation decisions and coordination scheme
Although the project decision offers the possibility of including all authorizations for the implementation of the project in an integrated manner, the competent authority may also choose to prepare the so-called implementation decisions in a coordinated manner after the project decision has been issued (Article 5.45 of the Act). The preparation, the decision-making process and the legal protection with regard to the various decisions on the implementation of the project are thus streamlined.
Under the previous legislation, the possibility of coordinated decisions included the communal, regional and national coordination regulations in the Spatial Planning Act and the General Administrative Law Act. With the introduction of the Act, all these coordination regulations are combined in the amended the General Administrative Law Act coordination regulation (Chapter 3.5 General Administrative Law Act).
The application of the General Administrative Law Act coordination scheme is determined by statutory provisions, such as the Electricity Act 1998, the Gas Act or the Mining Act, or by a decision of a coordinating administrative body (Article 3:20 of the General Administrative Law Act). As a general rule (Article 5:45 of the Act), the coordinating administrative body is the authority responsible for the project decision. There are two situations where this is not the case. If the executive committee of the water board adopts the project decision, the provincial executive is the designated coordinating administrative body. For project decisions of the national government, the competent minister is the coordinating administrative body. The role of the municipality is that the coordinating administrative body, through the coordinating scheme, may require the municipality to issue environmental permits to implement the project decision.
In the implementation phase of the project decision, the competent authority may decide to prepare the implementation decisions in a coordinated manner through the General Administrative Law Act coordination scheme (Article 5.45(1) in conjunction with Article 16.7 of the Act). In some cases, this is mandatory, e.g. in the case of decisions on the implementation of projects related to the main infrastructure and primary water protection (Article 5.46 of the Act).
It also applies to the General Administrative Law Act coordination scheme that, as in the case of a project decision, decisions taken within the framework of the coordination scheme can be appealed against in a single instance to the Administrative Law Division of the Council of State.
Points of interest for practice
Thus, the project decision is not entirely new and provides a basis for making decisions regarding, for example, building major roads, wind farms, or high-voltage lines. It will be interesting to see whether and how the broad participation offered by the project decision will develop in practice. It is also important to pay close attention to the transitional law in the first years after it comes into force. For example, during the transitional period, in which there is still a temporary and a new part of the environment plan, a project decision does not amend the environment plan, but counts as an environmental permit for an activity outside the scope of the environment plan (Article 22.16 of the Act).
This post is part of the Environment and Planning Act blog series. A list of all the blogs in this blog series can be found here.
Further information on the background and adoption 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, whereby all the articles of the law are provided with a relevant explanation based on the legislative history.