Planning and permit matters and liabilities

01-06-2024

1. Environmental plan

As of 1 January 2024 the Environment and Planning Act (Omgevingswet) has come into force. Under the Environment and Planning Act, every municipality should have an environmental plan. The environmental plan contains rules for the use of the physical environment. These plans for example include rules and restrictions regarding the use of a specific location, regarding building activities and regarding the quality of the environment (such as rules on soil quality). The environmental plan can also create permit obligations, for example with conditions for building or for felling trees. A project must meet all the site-specific and general requirements of the environment plan. If these cannot be met, a permit to deviate from the environmental plan must be applied for. It is in the discretion of the competent authority whether such a permit will be issued or not.

2. Environmental (building) permits

The Environment and Planning Act and the Structures Decree (Besluit bouwwerken leefomgeving) stipulate that structures higher than 5 meters or located underground require an environmental building permit. The Structures Decree also stipulates the requirements a structure must meet. These requirements for example cover (fire) safety, health standards and sustainability of buildings.

The Structures Decree regulates the technical building permit. As mentioned above an environmental plan may also contain a permit requirements for construction activities, relating to the spatial (non-technical) aspects of a building. This may for example include requirements for the external appearance of a building.

3. Energy saving measures and energy label

Under the Structures Decree, amongst others, a general energy-saving obligation applies. All measures with a payback period not exceeding 5 years must be implemented. A list of approved measures is available. This requirement is addressed to building owner. Users of buildings are also subject to an energy-saving obligation under the Living Environment (Activities) Decree (Besluit activiteiten leefomgeving), focusing on energy saving measures within the business activities. Sometimes both the owner and user of a building structure can be responsible for taking the same energy-saving measure (e.g. in the case of the use of a combustion plant which is both part of the building and part of the business activity). In this respect, arrangements about the responsibility to take measures can be made between the landlord and tenant in a lease agreement.

The Structures Decree requires the seller or lessor of a building (or part thereof) to submit an energy label upon completion. For office buildings, an energy label of (at least) class C is required (with certain specific exceptions).

4. Occupancy notification

Under the Structures Decree, under circumstances a notification is required prior to occupying a building. Whether such a notification is required depends on the function of a building in combination with the maximum number of persons that will be present (at any time) in the building. For example, an occupancy notification is required prior to the use of an office building in which more than 150 persons will be present. As another example, an occupancy notification is required for a retail function if more than 50 persons will be present in the retail unit at any time.

A notification under the Structures Decree may lead to an inspection on compliance with the decree by the competent authority. Technical due diligence is required to assess whether a building complies with the Structures Decree.

5. Environmental notification or permit

The Living Environment (Activities) Decree contains regulations for activities with (potential) impact on the environment. Under certain circumstances, it is required to submit a notification under this Decree to the competent authorities and/or to obtain an environmental permit.

Under the Living Environment (Activities) Decree, filing a notification or obtaining a permit is a responsibility of the operator of the (business) activity. Furthermore, notifications under the Living Environment (Activities) Decree may trigger inspections on compliance with the Decree by the competent authority. Such inspections can also regard technical aspects of a building that are a responsibility of the owner of a property and/or a shared responsibility of the owner of a property and the user/tenant of a property.

A technical advisor should check whether an activity factually complies with the regulations of the Living Environment (Activities) Decree.

6. Nature conservation law (protected species and areas)

Under the Environment and Planning Act, a permit is required for projects and businesses that may result in negative consequences for nature conservation areas (Natura 2000-gebieden). With regard to real estate, the focus is mostly on the potential impact that exhaust from traffic (both in the construction and operational phase) can have on nature conservation areas. On the basis of a so called AERIUS calculation, it can be determined whether a project and its expected traffic movements will have an impact on protected nature or not. If so, a permit is mostly required, as many Dutch nature conservation areas are overburdened with nitrogen. A permit for nitrogen deposition on a nature conservation area is difficult to obtain, as it generally requires existing emission rights which are scarce.

Furthermore, in case of a renovation, demolition or new construction project, it is also advisable to have a quick scan of flora and fauna carried out by an expert consultant. On this basis it can be determined whether protected species are present in or around the property, which should not be disturbed (for a certain period of time or at all). Sometimes compensatory or mitigating measures are needed and a permit under the Environment and Planning Act may be required. This can cause for a delay in projects.

7. Quality of soil and groundwater

The Environment and Planning Act contains various rules and duty-of-care provisions to prevent soil contamination. In case soil contamination does occur, in principle the polluter must remove it. Furthermore, the environment plan can set conditions regarding soil quality. This can mean that a specific building or use is only allowed if the soil quality is improved. In case soil contamination is found by chance that was previously unknown, the owner or leaseholder may be obliged to take measures in case the contamination causes a risk (to human health or nature). This is particularly the case if it is historical soil pollution and/or if the polluter is not known.

In case there is an order to take measures in place which was issued (by the competent authorities) under the former Soil Protection Act (Wet bodembescherming), such order remains in full force and effect under the transitional law of the Environment and Planning Act.

8. Asbestos

Based on the Working Conditions Decree (Arbeidsomstandighedenbesluit), asbestoscontaining materials in new constructions and renovations have been prohibited since 1993. However, there is no general legal requirement to remove asbestos, unless the presence of asbestos exposures risks to employees. Currently, asbestos is only to be removed if it forms a risk to employees and/or in case of renovation works. Reconstruction and demolishing works involving the removal of asbestos are bound to strict legal requirements under – amongst others – the Asbestos Removal Decree 2005 (Astbestverwijderingsbesluit 2005) in order to prevent human exposure to asbestos. In general, this implies additional removal costs.

9. Housing Act 2014

The national Housing Act 2014 (Huisvestingswet 2014) grants municipalities the discretionary power to decide (amongst others) that houses in certain areas may not be used for other than residential purposes, to decide that houses in certain areas may only be used by a single household Also, the municipality has the discretionary power to decide that in certain areas multiple houses may not be converted into a single house and to decide that houses in certain areas may not be split up in multiple houses. Exceptions can be made, which may be linked to a licensing system. If municipalities decide to use their discretionary power under the Housing Allocation Act 2014, they must do so by adopting a municipal housing regulation (huisvestingsverordening). As such, any locally applicable rules on housing allocation will be found in the municipal housing regulation and will differ from municipality to municipality.