Consequences of the General Provisions of Environmental Law Act for the Wro
The General Provisions of Environmental Law Act (Wet
algemene bepalingen omgevingsrecht, "Wabo") is
expected to enter into force on 1 July 2010. The Wabo will have
great consequences for environmental law as we know it. Below, a
quick glance into the future and the consequences for the
authorities from the Spatial Planning Act are
described.
The Main Changes
Almost all systems for municipal consent from the Spatial
Planning Act (Wet ruimtelijke ordening, "Wro")
will be included into the Wabo. This means that the systems for
consent from the Wro will be cancelled. Among other things, these
are the planning and demolition permit as far as included into a
zoning plan pursuant to Section 3.3 of the Wro, the minor exemption
or exemption within the plan pursuant to Sections 3.6 and 3.23 of
the Wro, the project decision pursuant to Section 3.10 of the Wro
and the temporary exemption pursuant to Section 3.22 of the Wro.
The Wabo contains the prohibitory provisions, assessment criteria
and the procedures for the granting of permits with regard to these
decisions. But also the rules regarding enforcement will be
integrated into the Wabo.
The Wro does remain the framework act for spatial planning, and
does maintain the rules regarding planning on a municipal,
provincial and national level, e.g. with regard to the structural
concept, zoning plans and soil exploitation plans.
Where
are the Exemptions and the Project Decision?
The prohibitory provisions for, among other things, the
above-mentioned systems for consent will return in the Wabo under
Section 2.1 of the Wabo. All deviations from the planning regime
are recorded in Section 2.1(1) under c and designated as the
activity for using grounds or buildings contrary to the zoning
plan. Although the term "using" could be understood to
mean that this activity can only be used to deviate from the
permitted use in the zoning plan, this term seems to have been
intended to have a broader meaning, and to concern also deviations
from building regulations. Just like the Wro, the Wabo too
distinguishes four kinds of decisions by which it is possible to
deviate from a zoning plan. All four are included in Section 2.12
of the Wabo. Moreover, this Section provides for the option of
deviating from the exploitation plan if the exploitation plan
contains such an authority.
Particulars of Exemptions
Within the Plan and Minor Exemptions
Section 2.12(1) under a under 1 and 2 of the Wabo contains the
current exemptions within the plan and minor exemptions. The
activities for which an exemption within the plan or a
minor exemption must be granted, will go through the regular
permit procedure as described in Section 3.7 in conjunction with
Section 3.10 of the Wabo. Pursuant to Section 3.9 of the Wabo, the
competent authorities have to decide on the application within 8
weeks. If they fail to decide within this term, the permit will
have been granted by operation of law. This is an important change
to the current practice, in which a permit by operation of law
could only come into being at the time when an application for a
building permit was submitted that was in accordance with the
planning regime. Municipalities must therefore be even more alert
to complying with terms. Incidentally, a permit does not seem to be
such a safe possession under the Wabo as under current legislation.
Under Section 6.1(4) of the Wabo, the permit only enters into force
by operation of law after the deadline for making objections has
expired, or if a notice of objection has been submitted, after it
has been decided on. Furthermore, it is possible to repeal a permit
by operation of law pursuant to Section 2.33 of the Wabo if this
permit relates to an activity that has unacceptable, seriously
harmful consequences to the physical living
environment.
Particulars of Deviation from Zoning Plan
Provided with Good Spatial Substantiation
The current project decision is included in Section 2.12(1)
under a under 3 of the Wabo. The term 'project decision'
does not return in the Wabo, but is referred to as a deviation from
a zoning plan accompanied by a good spatial substantiation. Under
Section 3.10 of the Wabo, this decision follows the extensive
preparation procedure. The extensive preparation procedure is equal
to the procedure described in Division 3.4 of the General
Administrative Law Act ("Awb") (the public preparatory
procedures) with some changes. The excess of a statutory time limit
for decisions of 26 weeks does not result in a permit by operation
of law. However, after this time limit has been exceeded, citizens
are free to give the government notice of default under the
Astreinte Act (Wet dwangsom). After a decision has been
granted, it is only open to appeal and appeal to the Council of
State. As opposed to the current practice, the Wabo does not
provide for a separate procedure for refusals. Therefore a refusal
must go through the extensive procedure, even if the competent
authorities wish to refuse an application for this deviation.
However, the obligation for the project decision to convert
remains unaffected and is maintained in Section 3.13 of the Wro.
However, apart from the Wabo another bill with considerable
consequences for the Wro is now being discussed: the bill on Rules
with regard to the accelerated development and realization of
spatial and infrastructural projects. This bill is also referred to
as the Crisis and Recovery Act. In the Memorandum of Amendment to
this bill it was proposed to amend Section 3.13 of the Wro
considerably. It was proposed no longer to connect the sanction of
administrative charges to the conversion of the decision for a
deviation in the zoning plan, but to the electronic making
available of the decision for a deviation. We may expect that if
this bill is adopted, this change will result in it that the
authority to deviate will be used very often in
practice.
Conclusion
It is the purpose of the Wabo to reduce and simplify the number
of consent systems. An explicit choice was made not to make any
material changes to environmental law. Despite this aim, the
procedural Gleichschaltung proves to have material
consequences too. Furthermore, it seems that if the bill for the
Crisis and Recovery Act will be adopted, an important spatial
instrument will be introduced.