Currently, all structures require permits. In addition, structures that go against a planning decision require integrated environmental permits. Some structures do not require permits and are not evaluated preventively against the land use plan and the Building Decree 2012.
The new Environment and Planning Act is expected to take effect in the spring of 2019. The Act implementing the Environment and Planning Act[1] splits the integrated environmental permit for structures into an integrated environmental permit for technical construction and one for a regional surroundings plan activity.[2] The regional surroundings plan is the new term for what is currently called the land use plan.
Integrated Environmental Permit for Technical Constructions
Under the Environment and Planning Act structures in principle do not require permits for technical construction. A permit is required only ‘to the extent that’ the structure has been designated by general order in council (adopted at central government level).[3] As a rule these are structures that present higher risks (such as multistorey structures).[4]
Integrated Environmental Permit for Regional Surroundings Plan Activity
The Act implementing the Environment and Planning Act stipulates that structures do not require permits, in principle, unless otherwise determined in the regional surroundings plan. The current land use plan does not contain an obligation to apply for permits for structures (it is determined at national level, after all, which structures do not require integrated environmental permits).
If no integrated environmental permit for a regional surroundings plan activity has been granted for a structure but the structure turns out not to comply with the regional surroundings plan, the competent authorities may take enforcement action. The new system, therefore, means initiators will have less legal certainty. It may also become difficult to get financing for construction projects if the initiator does not have an integrated environmental permit. Initiators are likely to apply for a permit (without being required to do so) to get legal certainty. Initiators may then object to integrated environmental permits granted, arguing that (on consideration) no integrated environmental permit was required. In the current system, too, initiators want to know for certain that their structures are not subject to integrated environmental permits and do not violate the land use plan (to prevent enforcement action). For that reason, they regularly apply for integrated environmental permits (without being required to do so). In this respect the systems are similar, but it is likely that under the new Environment and Planning Act even more (voluntary) applications will be filed, as initiators want to make sure that their structures comply with the regional surroundings plan.
Slangen Advocaten will closely monitor all developments surrounding the new Environment and Planning Act, and can always provide you with up-to-date advice on construction initiatives.
Fiona Sassen
19 September 2017
[1] Bulletin of Acts and Decrees, 2016, 156.
[2] Tijdschrift voor Bouwrecht 2017-7, p. 683-694, TBR 2017/109.
[3] Article 5.1.2 opening lines and under a Environment and Planning Act.
[4] Tijdschrift voor Bouwrecht 2017-7, p. 683-694, TBR 2017/109.
