The Transition to the Environmental and Planning Law Act: Transitional Law

The Transition to the Environmental and Planning Law Act: Transitional Law

As of 1 January, the Environmental and Planning Law Act will come into force. The introduction of this act is described as the largest regulatory transition since the Second World War. In this blog, we will provide an overview of the transitional law that will also take effect on 1 January. This overview is brief, as a blog is not suitable for discussing the entire transitional law. It is also essential to examine which parts of the transitional law apply to specific situations.

The transitional law is arranged in various parts of the new regulations. For instance, the transitional law can be found in:

• The Environmental and Planning Law Act Implementation Act (IwOw), the Environmental and Planning Law Act Implementation Decree (IbOw), and the Environmental and Planning Law Act Implementation Regulation (IrOw)
• Supplementary laws (and underlying regulations) to the Environmental and Planning Law Act
• Other regulations

The importance of transitional law is significant. When the Environmental and Planning Law Act comes into force, businesses and organisations must not be left in uncertainty about what is permitted and what is not. The transitional law aims to ensure there are no ambiguities regarding what exactly applies to existing activities or ongoing procedures.

Ongoing (Decision-Making) Procedures

The principle is that if preparatory procedures for decisions started before 1 January 2024, the old law remains applicable. Decision-making will proceed based on the old legal rules. This also applies to any objection and appeal procedures. Consequently, authorities (competent bodies) and judges in (higher) appeal cases must apply the old law.

However, there is an important exception. Under the spatial planning law in effect until 1 January 2024, there are two types of procedures: a regular procedure, with a decision period of generally 8 weeks, and an extended procedure. The law prescribes which procedure applies to the type of application. For applications following the regular procedure until 1 January 2024, the 'lex silencio positivo' rule applies. This means that if the decision period lapses without an active decision from the administrative body, the permit is deemed granted and automatically comes into effect. This system changes as of 1 January 2024: silent approval of a permit is abolished. Although the old law remains applicable to applications submitted before 1 January, permits can no longer be granted silently. The administrative body must actively make a decision.

Existing Permits and Exemptions

Under the new law, a number of activities requiring an environmental permit are listed, for which a prohibition applies unless you have an environmental permit (Section 5.1.1 Ow). This includes various construction activities, environmental plan activities, environmentally harmful activities, etc. Many such activities are subject to a prohibition provision.

If you currently have an environmental permit for an activity that is regulated under the Environmental and Planning Law Act by a prohibition provision as of 1 January 2024, and this permit is irrevocable, the principle is that your permit will be considered an environmental permit under the new law for that activity (Art. 4.13(1) IwOw). This also applies to any conditions attached to that permit. Other conditions set in the current permit, such as further requirements, obligations, or other restrictions, will be considered conditions of the environmental permit from 1 January 2024.

Activities Not Subject to a Prohibition Provision as of 1 January 2024

Under the Environmental and Planning Law Act, authorities (competent bodies) can set specific conditions, known as tailor-made conditions, if the law allows. These are conditions specifically tailored for individual cases, deviating from general rules for activities. Authorities can only do this if the law provides this flexibility.

What happens to activities that will no longer be subject to a prohibition provision from 1 January 2024 but for which an authority still wants to set conditions? To avoid authorities having to set numerous tailor-made conditions before the Environmental and Planning Law Act is introduced, the following regulation is included for those activities:

• A condition attached to a (current) environmental permit for an activity that will no longer be subject to a prohibition provision from 1 January 2024 will generally apply as a tailor-made condition by operation of law (Art. 4.5(1) Ow).
• If the Living Environment Activities Decree (Bal) does not apply to the activities, the tailor-made condition by operation of law will apply as a condition under the environmental plan (municipality), the water board by-law (water board), or the environmental regulation (province).
• If the Living Environment Activities Decree (Bal) does apply to the activities, the tailor-made conditions by operation of law will apply as tailor-made conditions under the Environmental and Planning Law Act (Art. 4.3 jo. 4.5 Ow), even if they are formulated differently than in the Living Environment Activities Decree.

Suppose your activity will no longer be subject to a prohibition provision as of 1 January 2024, and the current permit conditions will apply as tailor-made conditions by operation of law, but these conditions are much stricter than what would result from applying the Living Environment Activities Decree. In that case, you can request the competent authority to withdraw those tailor-made conditions by operation of law. You will need to take action yourself. We can advise and assist you with this.

Questions?

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