The need for delayed entry into force of an environmental permit for a successful application for injunctive relief 🌳

Article 16:79(2) of the Environment Act lays down the power for the administrative body to determine that a granted environmental permit will not take effect until four weeks after the day of publication of the decision. This provision is particularly useful for decisions that may cause irreversible consequences.

Such a situation existed in the ruling of the preliminary relief judge of the Gelderland District Court of November 7, 2024. This case involved a granted environmental permit for the construction of a new tree nursery. Part of the permit included the construction of drainage at a depth of no more than 90 centimeters below ground level. The applicant had applied to the preliminary relief judge for injunctive relief, as she disagreed with the granted environmental permit and had lodged an objection. She wanted to avoid irreversible consequences already before her objection had been decided.

It emerged at the hearing that the permit holder had already carried out and completed the drainage work. Thus, irreversible consequences for the archaeological remains in the soil had already occurred because the context of the archaeological remains had been lost during the drainage work.

The court in preliminary relief proceedings ruled that in this case it would have been in the power of the Municipal Executive to make use of the power provided in Section 16:79 (2) of the Environmental Protection Act. Because the Municipal Executive failed to do so and the permit holder started the drainage works immediately after the environmental permit was granted, the applicant could therefore not make a successful request for a preliminary injunction in any case, because the Municipal Executive had given the permit holder the opportunity to immediately start works with irreversible consequences and a preliminary injunction would therefore no longer be effective.

Do you disagree with a granted environmental permit for a site near you and wonder whether it makes sense to file an objection or appeal and request a preliminary injunction? If so, please contact Gerard van der Wende or Fleur Huisman.

You can find the link to the ruling here.