Spatial developments under the Environment Act

Introduction

The Environment Act will come into force on January 1, 2024. The Environment Act will bring about a radical change in the spatial planning system. Procedures, legislation, and regulations will change, which will have a major impact on initiators of new spatial developments.

With this document, we want to provide clarity to initiators about how we, as a municipality, view the new practical situation and how we deal with the new procedural options for enabling spatial developments under the Environment Act.

Introduction to the Environment Act

The Environment Act stipulates that the municipal council must adopt a single environmental plan for the entire territory of the municipality. Among other things, the environmental plan will replace the current zoning plans. The environmental plan sets out the municipal rules governing the physical living environment. The environmental plan replaces the zoning plan instrument (and related spatial plans such as implementation and amendment plans and management regulations) and all other regulations containing rules relating to the physical living environment, such as parts of the General Local Regulation (APV) and the Heritage Regulation.

What will happen when the Environment Act comes into force?

On January 1, we will receive an environmental plan by operation of law through the statutory transitional law; the so-called temporary environmental plan. The temporary environmental plan consists of:

  • the existing spatial plans in our municipality (zoning plans, amendment plans, implementation plans, and management regulations);
  • a number of regulations (the (archaeology provision from the) heritage regulation, odor regulation, and regulation on rainwater and groundwater drainage); and
  • the Dowry (rules that are being transferred from the national level to the municipal level).

Other municipal regulations (such as the General Local Regulation) are not directly incorporated into the temporary environmental plan and will continue to exist independently after January 1, 2024, until they are incorporated into the permanent environmental plan. This situation is illustrated schematically below.

As a municipality, we have until December 31, 2031, to convert the temporary environmental plan into a single, comprehensive environmental plan covering the entire municipality. The conversion of rules from the temporary part to the new part of the environmental plan can be done per location, which is why we are tackling this on an area-by-area and phase-by-phase basis. Where necessary, we are translating new policy relating to the physical living environment via a thematic amendment to the environmental plan.

How do we deal with new spatial developments?

New spatial initiatives will soon have to be assessed against the (temporary) environmental plan. If the initiative fits within the (temporary) environmental plan, a permit can be granted immediately. Naturally, the environmental permit must comply with legal requirements and, for example, our participation policy.

New spatial initiatives that do not fit within the (temporary) environmental plan are discussed at the 'Environmental Table'. At the Environmental Table, we discuss with all relevant advisors whether the initiative is desirable and possible within the frameworks and rules. For initiatives with a positive recommendation, a planning procedure can be initiated. New spatial initiatives that do not fit within the (temporary) environmental plan can be made possible within the Environmental Act in two ways, namely via:

  • an environmental permit for an environmental planning activity outside the plan;
  • an amendment to the (temporary) environmental plan.

In this document, we explain how we as a municipality view these possibilities and which procedural options we use for which spatial developments.

Off-plan environmental planning activity

For new spatial developments that do not fit within the (temporary) environmental plan, we generally apply an environmental permit procedure for an activity outside the environmental plan (BOPA). The municipal executive decides whether or not to grant the environmental permit.

Preconditions for a BOPA

The following preconditions apply to the application of the BOPA:

  • The (construction) plan is sufficiently concrete and sufficiently defined. This means, in any case, that it is clear what activities are intended at the location and that a detailed (construction) plan has been drawn up for this purpose. We do not consider the BOPA to be a suitable procedure for initiatives involving building plots.
  • There is a balanced allocation of functions to locations. The balanced allocation of functions to locations is the successor to the principle of good spatial planning. We do, however, apply a broader weighing of interests that relates to the entire physical living environment. This means that we also take aspects such as health, safety, quality of life, and sustainability into account when weighing up interests.
  • The instruction rules of the province and the national government, as included in the Gelderland Environmental Regulation and the Quality of the Living Environment Decree, can be complied with.
  • There is no need to deviate from regulations that are not (yet) part of the applicable environmental plan, such as the General Local Regulation.
  • No changes need to be made to the applicable environmental plan for the development, either at the location itself or in the vicinity of the location. This may be the case, for example, if changes need to be made to the applicable environmental plan in order to ensure a balanced allocation of functions to locations. This could involve, for example, no longer allowing certain activities in the environmental plan, such as 'rezoning' an (agricultural) business in the context of a change of function, and/or imposing restrictions outside the plan area, such as including a spray-free zone or lowering the environmental category of a business plot.

We expect initiators to provide spatial substantiation (including any studies) demonstrating that the aforementioned conditions can be met. The spatial substantiation must also describe the results of the participation process.

BOPA procedure

In principle, the regular preparation procedure applies to the BOPA. The decision period is normally a maximum of 8 weeks. In some cases, however, the extensive preparation procedure with a decision period of normally a maximum of 26 weeks will apply. This is certainly the case if:

  • This is at the request or with the consent of the applicant.
  • This is an activity that has or could have a significant impact on the physical environment and is likely to raise concerns among various stakeholders.

In addition, the municipal council of West Maas en Waal has the right to advise the BOPA on various activities. If an initiative falls within this list of activities, the extensive preparatory procedure will also be applied. After all, these are initiatives that our council has indicated may have a significant impact on the physical living environment.

List of activities subject to the right to be consulted on environmental planning activities outside the plan, in accordance with the council decision dated January 27, 2022

1. Living

  1. Adding 5 or more dwellings within the built-up area;
  2. Adding a residential building with more than three stories;
  3. Adding or building one or more homes outside the built-up area.

2 Hospitality and retail:

  1. Establishing, changing, or expanding hospitality or retail businesses outside built-up areas;
  2. Establishing, changing, or expanding hospitality businesses within built-up areas.

3 Sports, social activities, and recreation:

  1. The realization of large-scale social facilities (such as MFAs);
  2. The creation of sports infrastructure, including sports parks and sports halls;
  3. All projects for intensive day and residential recreation, including the associated facilities, such as recreation areas and campsites.

4 Companies

  1. Establishing, changing, or expanding a business outside of a business park;
  2. The establishment, modification, or expansion of all companies with environmental category 3 or higher.

5 Agricultural

  1. The establishment, alteration, or expansion of an agricultural building area exceeding 2 hectares.

6 Renewable energy

  1. The construction of one or more wind turbines;
  2. The realization of a solar park of at least 1 hectare;
  3. The generation and/or storage of other forms of energy, with the exception of the generation and storage of energy for a single dwelling.

7 Infrastructure and utilities

  1. The realization of large-scale above-ground and underground infrastructure (engineering structures).

8 Large-scale earthmoving

  1. Large-scale earthmoving as referred to in the policy framework for large-scale earthmoving adopted by the council.

9 Sensitive topics

  1. If, in the opinion of the board, there is social unrest or other politically sensitive initiatives.

Amendment decision on environmental plan

New spatial developments that cannot meet the preconditions of a BOPA can be made possible by means of an amendment to the environmental plan. An amendment may or may not be adopted by the municipal council.

Preconditions for changing the environmental plan

In order to adopt an amendment decision, the following applies:

  • There must be a balanced allocation of functions to locations. The balanced allocation of functions to locations is the successor to the principle of good spatial planning. In doing so, we apply a broader weighing of interests that relates to the entire physical living environment. This means that we also take aspects such as health, safety, quality of life, and sustainability into account when weighing up interests.
  • The instructions issued by the province and the national government, as set out in the Gelderland Environmental Regulations and the Quality of the Living Environment Decree, must be complied with.

We expect initiators to provide a justification (with any relevant studies) demonstrating that the above conditions can be met.

Procedure for amending the environmental plan

An amendment to the environmental plan is adopted on the basis of the extensive preparatory procedure laid down in the General Administrative Law Act, as is currently the case with zoning plan procedures.

Technical requirements for amendment to environmental plan

We are currently working as a municipality on a basic structure and set of rules for spatial developments in accordance with the new technical STOP/TPOD requirements of the Environment Act. Until this basic structure and set of rules are in place, we are drawing up an amendment to the environmental plan based on the technical requirements of TAM-IMRO. Publication will therefore take place in the 'old' way via Ruimtelijkeplannen.nl and Official Announcements. The TAM-IMRO amendment decision uses the locally applicable zoning plan as a starting point for the rules and representation. For the justification accompanying TAM-IMRO plans, we are working on a model design that, in addition to the current aspects that fall under the heading of good spatial planning, also addresses aspects such as health, safety, quality of life, and sustainability.

West Maas en Waal, November 24, 2023