The transitional arrangement
In the Rendac ruling of December 18, 2024 the Council of State ruled that internal balancing is subject to a permit requirement, whereas previously it was not. Moreover, the Council of State ruled that the permit obligation applies retroactively, namely as of January 1, 2020. Because this means that all kinds of initially legally performed activities have become illegal from one moment to the next, the Council of State has provided for a transitional arrangement. That transitional arrangement means that until January 1, 2030, in principle, no enforcement action can be taken against:
"[...] activities that were physically started between Jan. 1, 2020 and Jan. 1, 2025, that are still in operation or are still being operated after that date and for which it could be assumed on the basis of the previously applicable case law on internal offsetting that no nature permit was required [...]".
Initiators of activities covered by the transitional regime thus have until January 1, 2030 to still obtain a nature permit (environmental permit for the Natura 2000 activity) without fear of enforcement action in the meantime. Thus, construction, once begun, need not be halted pending the nature permit. The Council of State also explicitly mentions "exploitation," so that occupation of the structure once built also falls under the transitional regime.
Preliminary question 1: started before Jan. 1, 2020?
The transition rule only applies to activities started between Jan. 1, 2020, and Jan. 1, 2025. So if construction started before January 1, 2020, the transitional regime does not apply. This is because prior to that date a permit requirement for internal netting still applied.
Question 2: application of internal netting?
The transitional regime only applies to projects where internal offsetting has been applied, resulting in 0.00 mol/ha/year. If, after internal offsetting, but for the remaining deposition, significant effects on Natura 2000 areas could be excluded in advance by means of an ecological pre-assessment, the project was not subject to a permit requirement and therefore also falls under the transitional regime. However, if there was - for example - a combination of internal and external offsetting (including use of a nitrogen bank or leasing of nitrogen rights), the transitional regime does not apply.
If the signals are still green after the previous two questions, the question remains whether the activity began before Jan. 1, 2025.
Date of environmental permit not relevant
First, it is important to realize that the date on which the environmental permit was granted or became irrevocable is not relevant. It is an assessment of whether construction activities have physically started.
The 'project' concept
Although not so explicitly considered, by the physical start of an 'activity' the Council of State seems to be referring to the 'Natura 2000 activity' as defined in the Environment Act. That definition refers to the concept of 'project' in the European Habitats Directive. In that Habitat Directive, the term 'project' is not further defined. From both European as well as national case law, it can be inferred that the activities must be inseparable. This applies, for example, to the construction and use phases of buildings: the two may not be considered separately and thus together constitute a single project.
When did (construction) activities physically start?
Of course, the physical start of the construction phase, that is, the moment the first pile is driven into the ground or the first brick is laid, constitutes the start of the activity referred to in the Rendac ruling.
Given the interpretation of the term 'project', however, it is quite defensible that this can also include site preparation. After all, that site preparation is necessarily connected to the construction: without site preparation there can be no construction.. In that reasoning, the pre-taxation of the land is also included in the start of the project. And even the demolition of the old building can under circumstances be seen as the start of the project.
However, it will have to be made sufficiently plausible that the demolition, preloading and/or site preparation are inextricably linked to the actual construction, in the sense that they must be directly related to it. This may be evident from agreements and permits or applications, for example. Furthermore, it is obvious that the Aerius calculation prepared for the project (and internal netting) also takes into account (the emissions of) all these preparatory activities. If these have not been taken into account and - whether deliberately or not - have been calculated separately, this is a contraindication and it is questionable whether internal balancing was still possible.
Conclusion: preparatory acts can also make a project fall under the transitional regime
In short, it is defensible that a project (activity) for which internal netting has been used, has already started at the start of the preparatory work and thus earlier than the moment when the first pile is driven into the ground. However, this does depend on the circumstances of the specific case.
Finally, a disclaimer is appropriate here, in that at the time of writing this blog, there is no case law yet on the application of the transitional rule. It is therefore important to keep a close eye on developments. Since not everyone has the time and inclination to do so, we will do so anyway. Therefore, if you have any questions, we will be happy to help you.
Webinar on building, nitrogen and offsetting in 2025 - Tuesday, March 18
Want to know more? On Tuesday, March 18 from 10 a.m. - 11 a.m., Juuk Hulshof and Caspar Delissen will host a free webinar. In it, they will discuss the implications of the Rendac ruling for projects that everyone thought were legally settled.
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