(Re)distribution under environmental law – Gebiedsontwikkeling.nu

The Dutch Environmental Assessment Agency (PBL) last published the report in September 2023 Balance of the living environment. It presents the state of the living environment in the Netherlands every two years. The most important overall conclusion: Although the living environment is more than ever the center of political and social attention, it does not yet seem possible to achieve a number of important living environment targets for 2030.

The title of the report is: “Future Choices, Fair Distribution.” The term “partitioning” means that the living environment still provides space for the tasks of the new living environment. However, the PBL project concludes that the pressure on the living environment is not decreasing or barely decreasing.

He pinches the shoe

In this context, it would have been better to talk about “mere redistribution.” In the limited usable (environmental) space available in the Netherlands, it may sometimes be desirable to reclaim space already allocated. They can then be reused to address other environmental challenges.

Here the problem also arises: who must give up legally acquired rights? Consider the problems in rural areas when it comes to nitrogen and nature. Or in an urban area near Schiphol that suffers from the conflict between noise pollution and livability. This is always about competition between functions that cannot simply be combined.

In my doctoral research, I want to closely monitor how this is implemented in practice, and how legally, under environmental law, trade-offs are made between different interests in developing areas. These conflicts can relate to the distribution of scarcity in the so-called “ecological path” and in the “spatial path”.

For example, (re)distribution can take place through tightening or (partially) withdrawing environmental permits. This can only happen if there is better environmental protection that can be demonstrated. Therefore, the complex question is whether and when this path can be followed with the aim of bringing about new spatial developments. It may also involve competition between different jobs, for example, in an already very dense urban area. It may simply be that there is no longer room to expand (extend) certain functions.

Companies are not happy

The Hembrug site in Zaanstad is a striking example of the latter. In 2019, the State Council put an end to Zaanstad's municipal plans. The former defense site in Hembrug will be transformed into a mixed residential and business district. In anticipation of the environmental law, the municipality piloted an “expanded scope zoning plan” under the Crisis and Recovery Act (Chw).

The planned area is adjacent to a number of industrial areas. As is often the case in such cases, the various existing companies feared that their business operations and expansion options would be limited. That's why they appealed – successfully – against this zoning plan.

The reason for the destruction of the plan was related to the illegal use of seaport standards in the Noise Abatement Act. The port standard allows for higher noise loads on homes, but can only be applied to a “limited expansion of an existing residential area.”

According to the State Council, this was not the case in a large part of the planned area. The municipality of Zaanstad has now developed a new plan in which homes are located at a greater distance from businesses. The representative of the surrounding entrepreneurs stated that they find clarity important. According to the companies, the flexible implementation of the plan does not provide sufficient clarity. The exact location of homes involves uncertainty when it comes to influencing the permissible noise load on homes.

The Hembrug case illustrates this difficult field well. On the one hand, flexibility and open standards can be beneficial. Not completely closing the zoning plan may provide opportunities to develop the area, because it will be easier to respond to changing conditions. However, this creates legal uncertainty for existing companies because they do not receive any guarantees about the future (expansion) of their business operations.

Delicate balance

Environmental law may provide more room for flexible plans, but there is still an open question about how this law will affect rights acquired in the past. It also remains to be seen whether wider use of the tools will lead to different results in practice.

Can construction be carried out faster using flexible plans or do they essentially lead to ongoing legal proceedings? Are standards changing regarding which jobs can be located in close proximity to each other? To what extent can companies, for example, rely on previously acquired rights that they consider essential to their business operations? This involves a delicate balance between legal certainty and the potential for redistribution of usable (environmental) space.