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Natural fires are a growing risk in the Netherlands due to increasingly long periods of drought. With the high population density and the fact that many people recreate in natural areas, the risks of a hefty fire are increasing. In this blog, we look at the confluence between nature conservation law on the one hand and the need to be able to take measures in natural areas to prevent wildfires on the other.

A well-known term in nature law is ‘Natura2000’. A term that refers to specially designated nature reserves that enjoy a high degree of protection. In the press, one hears mostly about restrictions imposed by the protection of these areas. At the same time, protecting the (limited) nature that is still there is also of great importance.

Nature protection legislation comes from Europe. Natura2000 areas are protected by the rules in the Habitats Directive. Under that directive, member states must designate special protection areas. These are zones in which certain measures are applied that are necessary to maintain or restore natural habitats and/or populations of species to a favourable conservation status. The protection of Natura2000 sites is mainly regulated by Article 6 of the Habitats Directive.

Plans or projects that are not directly related to the management of the site, or are not required for that purpose, can in principle only go ahead if a so-called ‘appropriate assessment’ is made of the impact of the plan or project on the site. That appropriate assessment takes into account the conservation objectives of that specific site. Licensing authorities may therefore only issue a permit if it is certain that the project or plan will not adversely affect the natural features of the site concerned.

However, some projects or plans can still go ahead. This is the case if there are imperative reasons of overriding public interest and there are no alternative solutions. In such a case, compensatory measures will have to be taken to ensure that the Natura 2000 site is preserved (overall coherence is maintained).

But what if such an area is also subject to rules in the context of, for example, protection against forest fires? Are projects relating to forest fire management measures also ‘projects’ requiring an appropriate assessment?

On this subject, the European Court of Justice recently issued a judgment in a case that played out in Latvia. A private Latvian nature management organisation and local Latvian authorities were knocked back by the Latvian Environmental Protection Authority. What exactly was at stake?

An inspection by the Latvian Nature Protection Authority found that about 17 kilometres of trees had been felled along nature roads in a nature reserve. This was a nature reserve designated as a special protection zone, or Natura2000 area. The regional government had previously agreed to the felling and it had been carried out by a commercial Latvian company specialising in nature management.

However, the nature conservation authority found that felling (and removal of the felled) should not be carried out lightly and ordered that the negative impact of the activities be mitigated. The felled pines had to be left in the forests (to serve as suitable material for animals living in the forests) and even additional material had to be brought in so that the amount of dead wood would be sufficient for its and animals living in it. But then again, dead wood also burns nicely, so the local authority was less keen on that.

Legally, there were five questions at play (in less legal language):

1. If one carries out activities in a Natura 2000 forest area that are carried out to ensure maintenance of installations present there to protect against forest fires, is that also a ‘project’ under Article 6 of the Habitats Directive? This could assume that the activities do comply with national fire prevention rules.
2. And should those activities then be considered a project “not directly related to or necessary for the management of the site”? And that those activities then do not require an appropriate assessment?
3. Or does the Habitats Directive do impose an obligation to carry out an assessment for these projects, even if their implementation is required by national fire prevention rules?
4. And may the activities be continued and completed before an appropriate assessment has taken place?
5. And if those activities have been carried out without an appropriate assessment, are the competent authorities obliged to take measures to prevent significant effects and to require reparation for the damage caused?

The Court considers that although the Habitats Directive does not define ‘project’, the concept of project in the Environmental Impact Assessment Directive can be used for that purpose. Works or interventions which alter the physical condition of the site concerned are a ‘project’ in that sense. Such is the case of felling trees for the maintenance of nature roads in a Natura2000 nature reserve. So there is a ‘project’ within the meaning of Article 6 of the Habitats Directive.

The Court then considers that while it may be possible for forest fire management measures to be allowed without an appropriate assessment, they must then also be ‘necessary’ to maintain protected habitats or species at a favourable conservation status. Or to restore those habitats or species. And those measures must then be appropriate for the area in question and suitable for achieving those nature-species conservation objectives.

So one will have to consider whether the logging operations will affect the conservation objectives and make a certain risk analysis. In order to do that, an appropriate assessment will almost always have to be made anyway. The starting point is therefore that an appropriate assessment must be made unless the measures are so directly related that this can be bypassed. Even if the fire prevention measures are prescribed by other legal rules, an appropriate assessment is still required, as the assessment can determine which measures are most appropriate for that type of area.

So does that mean that if there is a negative impact on the conservation area, no fire prevention measures are possible? It does not. Even if the assessment would show that there are negative impacts and no alternatives, the Habitats Directive still allows for fire prevention measures. If sufficient compensatory measures are taken, such measures can be considered to follow from an overriding reason of overriding public interest.

In this case, the Court also ruled that the works could not be continued or completed before an appropriate assessment of their impact on the site. This may be different again if the area’s own nature management plans include certain fire protection maintenance. Such maintenance must then, of course, be necessary to maintain or restore protected habitats or species to a favourable conservation status.

Finally, the Court considers that it does not follow from Article 6 of the Habitats Directive that private individuals (in this case, the Latvian nature management company) who carried out the works would have to pay compensation for the damage or repair the damage. Indeed, the directive article is addressed to Member States (and associated competent authorities) and thus does not impose obligations on private individuals.

Returning to the beginning of this blog: Nature conservation rules and fire prevention rules can therefore overlap and affect the implementation of fire prevention measures within nature reserves. Therefore, to ensure that the necessary fire prevention measures can be implemented in a timely manner, an appropriate assessment should be carried out. This would seem to be the least risky path whereby, on the one hand, the conservation and restoration of nature is ensured as much as possible and, on the other hand, adequate anticipation of the increasingly frequent wildfires can be achieved.

You can read the European Court of Justice ruling here.

Do you have questions about nature conservation law? If so, please contact us!

On 1 January 2024, the new Environment Act came into force. This act will house many of the rules on the ‘physical living environment’. The systematics of the Environment Act can be quite difficult. Things have changed and new case law will emerge. In the coming period, we will follow this case law in the form of blogs, but first we will discuss the systematics of the Environment Act. We start with this blog, in which we address some general points of the Environment Act, being the reason for introducing the Environment Act, the goals of the Environment Act and the scope of the law.

Reason

Before the turn of the year, the rules on physical living environment were scattered among various laws and regulations. These laws and regulations were not designed as a system, but this has developed over the years. This sometimes made joint application of the rules very difficult. Consequently, this was one of the main reasons for the systemic review of environmental law.

Under the Environment Act – this is the idea – a clearer system will be used, making the application of laws and rules easier.

Scope

The core of the new environmental law system is formed by the Environment Act, the Quality of the Living Environment Decree, the Activities in the Living Environment Decree, the Building Works in the Living Environment Decree, the Environment Decree and the Environment Regulation.

Chapter 1 of the Environment Act regulates the scope. For this purpose, two elements are important:

• the physical living environment; and
• activities that have or may have an impact on the physical living environment.

 

What exactly can be understood as ‘the physical living environment’ is not fully defined. However, Article 1.2(2) of the Environment Act does contain a number of examples of components that are in any case part of the physical living environment. For instance, the physical living environment includes at least buildings, infrastructure, water systems, water, soil, air, landscapes, nature, cultural heritage and world heritage. The physical living environment thus includes both the natural environment and elements created by humans. Examples include buildings and roads.

The concept of ‘activities that have or may have an impact on the physical living environment’ is also not specified. The only requirement mentioned is that the activity has (potential) adverse effects on the physical living environment.

All in all, the scope is quite broad and not very defined. In practice, these concepts will most likely be further crystallised in case law.

Goals

The environmental law system review has four improvement goals:

• Improve and speed up decision-making on projects in the physical living environment.
• Improve the room for administrative deliberation by facilitating an active and flexible approach to achieving goals for the physical living environment.
• Increase the clarity, predictability and ease of use of environmental law.
• Achieve a coherent approach to the physical living environment in policy, decision-making and regulation.

 

Because the Environment Act and its regulations are, all in all, quite complex and extensive, the question is whether these goals will be achieved.

In addition, Article 1.3 of the Environment Act mentions social goals:

• ‘To achieve and maintain a safe and physical living environment and good environmental quality, also because of the intrinsic value of nature;
• Effectively managing, using and developing societal needs.’

 

Achieving and maintaining a safe and physical living environment and good environmental quality refers to the importance of safeguarding the quality of the physical living environment. s such, this refers specifically to ‘protecting’ the physical living environment. This is because the Environment Act aims, among other things, to protect health and the environment and ensure the safety of the physical environment.

Managing, using and developing the physical environment to fulfil social needs refers to the fact that the physical environment can also be used by people for social tasks. Think of tasks in industry, agriculture or housing. Management, for example, refers to the management of dykes. Use, for instance, involves abstracting water. Developing looks at building structures, for instance. All this has to be done as effectively and efficiently as possible, because the available space for use has to be divided among various social needs.

Conclusion

In short, the systematics of physical environment legislation have changed considerably. The purpose of this change is to facilitate the application of the legislation. However, the question is whether this is actually the case in practice. In the end, the Environment Act has once again become complex. The first signs are that it is not too bad in certain respects, but the manageability of the rules in particular is difficult. There are a huge number of references to other rules, which themselves refer to other rules. It is therefore far from certain that the improvement targets will be met. here is a significant chance that citizens and businesses will lose sight of the forest for the trees and be forced to seek specialised assistance.

How difficult or easy the application of the Environment Act will ultimately be, practice will tell. In subsequent blogs, we will elaborate on developments in case law concerning the Environment Act.

If you are experiencing difficulty in applying the Environment Act or are curious about what the coming into force of the Environment Act means for your plot or your company, please contact Gerard van der Wende, Petra Lindhout or Fleur Huisman.

Fleur and Petra Sworn in as Solicitors!

After years of hard studying and gaining practical experience at our firm, our colleague Fleur Huisman was sworn in as a solicitor at the Rotterdam court last Friday! ⚖️

But there is more good news, as after working at The Hague University of Applied Sciences for 6.5 years, our new colleague Petra Lindhout has dusted off her gown and was also re-sworn in as a solicitor at the Rotterdam court! ⚖️

In the presence of family and several colleagues, this was a truly wonderful and special moment for both of them.

Together with Gerard van der Wende, they now form the "Environmental Law" team.

Our already strong offering in various legal areas is now even more robust with these added specialisations. This means that for clients in sectors such as construction, horticulture, recycling, waste processing, and water boards, we can provide even more targeted support for the expansion or modification of their activities.

If you have any questions about Environmental Law, please contact our Environmental Law specialists.

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?

If you have any questions, please contact us.

Op donderdag 16 november jl. organiseerde ons kantoor in samenwerking met Van Steensel Assurantiën BV een symposium over Pensioen en Arbeidsrecht!

Zo’n 70 ondernemers en medewerkers HR verzamelde zich in het gastvrije Kennis- en ontmoetingscentrum VNAB aan de Boompjes te Rotterdam voor een informatieve middag vol nieuwe Arbeidsrecht wetsontwikkelingen en Wet toekomst Pensioenen.

Namens ons kantoor spraken Dennis Oud en Tessa Sipkema onze klanten en de klanten van Van Steensel bij over actualiteiten in het Arbeidsrecht, zoals nieuwe arbeidsrecht wetsontwikkelingen die belangrijk zijn voor werkgevers en gaven de laatste stand van de rechtspraak op het gebied van grensoverschrijdend gedrag en Zelfstandigen Zonder Personeel.

Flip Ackema (Pensioen Advies Groep Legal Services) praatte de ondernemers bij over de Wet toekomst pensioenen en wat dit allemaal met zich meebrengt.

Tevens werden er een aantal casussen voorgelegd en werden er de nodige vragen over en weer gesteld. Na de presentatie werd er nog uitgebreid nagepraat over deze onderwerpen onder het genot van een lekker hapje en drankje.

Kortom; een zeer geslaagde interactief symposium en voor herhaling vatbaar!

Graag bedanken wij alle aanwezigen en in het bijzonder Peter Schoneveld van Van Steensel Assurantiën voor de prettige samenwerking en VNAB voor het gastvrije ontvangst en de goedverzorgde middag.

On Wednesday, 15 November at 10:00 AM, the final application period for the STAP budget will begin. The government has decided that from September onwards, only OCW-recognised courses will be eligible for the STAP budget, aiming to make the STAP budget more job market-oriented. As a result, the number of courses eligible for subsidy has significantly decreased. Therefore, first check the UWV website to see if you qualify for the subsidy.

You will need a STAP registration certificate and student number for your application. If you still need to arrange anything, do so as soon as possible.

Tip: Submit your application before 10:00 AM to increase your chances of getting through the queue. For more information, visit the UWV website: www.stapuwv.nl and follow the step-by-step guide.