Nitrogen and the nature permit for construction projects
Since the end of the PAS and the construction exemption, nitrogen has been a key issue for almost every larger project. What do you need to take into account?
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Nitrogen deposition on vulnerable habitats has for years been one of the biggest legal obstacles to construction and infrastructure projects in the Netherlands. Anyone preparing a project needs to know early on whether a nature permit is required and how it can be obtained.
Background
In 2019, the Administrative Jurisdiction Division of the Council of State (Raad van State), the highest administrative court in the Netherlands, ruled that the Programmatic Approach to Nitrogen (Programma Aanpak Stikstof, PAS) could not be used as a basis for authorising activities. The legislature subsequently introduced an exemption for nitrogen emissions during the construction phase, known as the construction exemption (bouwvrijstelling). That exemption did not survive scrutiny by the Council of State either. Since then, it has been necessary to assess, project by project and for the construction phase as well, whether there are effects on Natura 2000 sites.
Which authorisation is required?
Since 1 January 2024, nature conservation law has been incorporated into the Environment and Planning Act (Omgevingswet). The former nature permit is now called the environmental permit for a Natura 2000 activity. Such a permit is required if a project may have significant effects on a Natura 2000 site, for example through nitrogen deposition. In practice, whether that is the case is determined by a calculation using the AERIUS model, both for the construction phase and for the operational phase.
Offsetting
If deposition increases, it may be possible to offset this with a reduction elsewhere. With internal offsetting, the new situation is compared with the existing, permitted situation at the same location. With external offsetting, nitrogen capacity from another activity is used, for example from a business that is closing down. Both forms are subject to conditions, and case law on the subject is evolving rapidly. It may, for instance, be necessary to apply for a permit even where internal offsetting is used.
What does this mean for your project?
Nitrogen is not merely a permitting issue. It also affects planning, financing and contracts. A contractor required to use low-emission equipment will charge for it. A buyer of land will want to know whether the intended project can obtain a permit. Include nitrogen in the due diligence, therefore, and in the arrangements between developer, contractor and client.
Objections and appeals
Because environmental organisations and local residents regularly challenge permits in court, it is important that the application is well substantiated. We guide you through the application, review the calculations together with your advisers and represent you in objection and appeal proceedings, up to and including the Council of State. Because we act for public authorities as well as businesses, we know both sides of the procedure.
Stay up to date
Nitrogen policy is in constant flux, with new legislation, case law and policy choices. For any specific project, have the current state of affairs assessed before you take irreversible steps.
This article contains general information and does not constitute legal advice. Legislation and case law may change, and the outcome always depends on the circumstances of your situation. For advice on your matter, please get in touch with us.
