In the nitrogen crisis it is still unclear what the nitrogen emissions of various sectors, such as industry, are. As long as this is not clear, nature permits granted to farmers for nitrogen emissions should not be revoked just like that.
The current nitrogen problem is the result of commitments made by the Netherlands at the European level. As a member state of the European Union, the Netherlands is obliged to apply and implement the Habitats Directive nationally. Under the Habitats Directive, the Netherlands was obliged to designate areas in which special natural values must be protected. Targets had to be set for those so-called Natura 2000 areas. Those targets are in jeopardy due to excessive nitrogen deposition in those areas.
The Habitats Directive also includes the obligation for a permit system and the possibility or even obligation to modify or revoke a granted nature permit. Indeed, a member state must take appropriate measures to prevent deterioration with significant effects on Natura 2000 sites.
Not sustainable
As long as the targets are not met, appropriate measures must be taken. However, the Netherlands is free to choose which measures are appropriate, as long as it is clear that the targets will be met within the foreseeable future. Until targets are met, it is strictly speaking not allowed to allow new developments such as business expansion and housing construction. This means that the Netherlands is locked in. This has actually been the case since 2008, but the Dutch government has always opted for legal solutions that were not tenable. After a judicial slap on the wrist, a new legal construct followed. In my opinion, the government is still opting for non-sustainable solutions with the current nitrogen exemption for construction. As clearly follows from the reports of the Remkes Commission, choices have to be made and the focus should now be on nitrogen reduction and nature restoration. After that there will be room for new development.
Nitrogen reduction and nature restoration can only be achieved by taking appropriate measures. If no other appropriate measures are possible, there is an obligation to revoke or modify a nature permit. The highest administrative court, the Administrative Law Division of the Council of State, made this clear early this year. If other appropriate measures are still possible, the province, as the competent authority, has room to assess whether to modify or revoke a nature permit. Of those other appropriate measures, however, it must be established what they are, within what time frame the measures will be implemented and when their effects are expected to be felt. The administrative court will test this intrusively, and the province must therefore substantiate an amendment or revocation decision well.
The ball is in the province’s court
In my opinion, a revocation of a nature permit for a farm can only be done if it is clear what other sectors like industry contribute to nitrogen precipitation. These ’emitters’ must also have a permit. If they do not have a nature permit, then this must be addressed first. As long as provinces do not have this or are not sufficiently clear, then other appropriate measures may still be possible. The fact that it is up to the provinces does not make things easier for the national government, by the way. This can create regional differences.
Ultimately, there may then be an obligation to modify or revoke the nature permit. This route is probably faster than expropriation in many cases, though. Before an expropriation procedure can be applied, the zoning plan must be amended and negotiations to buy out must come to nothing.
In that respect, the advice of the country’s attorney is understandable. However, revocation or modification of the nature permit cannot be done lightly either. In both cases, the government is required to come up with money. However, money alone is no compensation for loss. Clear choices and good explanations can alleviate this pain, though. The government must face up to that and get to work on it.
This contribution was written by mr. Ernst Plambeck, affiliated with the Practice Groups Government and Real Estate. Deze bijdrage is ook verschenen in het Reformatorisch Dagblad.
