In outline, what legislative and governmental controls apply to strategic planning/zoning across regions and in localities?
Dutch planning law encompasses both zoning law – which governs the designation of specifically demarcated areas for particular uses and which is laid down in environmental plans – and public law permits governing specific activities (eg construction and demolition) and uses (eg manufacturing) which should be obtained by parties carrying out such activities or uses.
Both strategic planning/zoning and public law permits in the Netherlands are governed by a combination of law, by-laws and policy. The law and policy is contained in:
Most of the Dutch planning and zoning law, as well as environmental laws (e.g. on soil and nature) are included in one overhauling piece of legislation in force as of 1 January 2024: the Environment & Planning Act.
Many of the Dutch protected nature area’s (Natura 2000-area) deal with nitrogen-related issues (such as significant negative effects to the flora and fauna present in these areas). In the past few years this has led to a stricter (nature) permitting regime to prevent further negative effects. On December 18, 2024, the Council of State of the Netherlands delivered a landmark ruling regarding the use of internal netting (intern salderen) in nitrogen emission assessments for projects affecting Natura 2000 conservation areas. This ruling marks a significant shift in how nitrogen emissions are evaluated, particularly for plans or projects impacting sensitive nature areas.
Internal netting refers to the process of netting nitrogen emissions from a new project by netting them with reductions from previous activities on the same site. Prior to the ruling, internal netting could be considered during the preliminary ecological assessment to determine if a nature permit was necessary. However, the Council of State decided that from now on, internal netting should only be factored into the more comprehensive ecological impact assessment phase. This change means that a nature permit is required for projects using internal netting to offset nitrogen emissions.
Additionally, the ruling imposes stricter criteria for internal netting. The "reference situation" for determining how much nitrogen can be netted must now be more precisely defined, limiting the potential nitrogen space for new projects. It also establishes that internal netting can only be successful if additional measures are implemented to improve the state of the affected Natura 2000 area (the additionality requirement). This ensures that the netting does not rely on reductions that are essential for maintaining or restoring the area's ecological integrity.
The ruling also has retroactive effects, applying not only to new projects but also to projects that have already been carried out between 2020 and 2025, which used internal netting without a permit. A transitional arrangement allows these projects to continue until 2030, giving time for permit applications or adjustments to meet the new stricter criteria.
Furthermore, a ruling in January 2025 by the District Court of The Hague added to the complexity by ruling that the Dutch state is failing to meet its nitrogen reduction obligations under the Environmental Planning Act, which mandates a 50% reduction in nitrogen-sensitive areas by 2030. This court decision emphasizes that priority must be given to the most urgently affected areas, complicating the available nitrogen space for new projects. This impacts the scope of internal netting, particularly in heavily polluted areas.
In summary, these rulings create a more stringent regulatory environment for nitrogen emissions in Natura 2000 areas. Projects will face increased requirements for environmental assessments and the need for nature permits, both for new projects and retroactively for those initiated between 2020 and 2025. This will likely result in a greater focus on reducing nitrogen emissions and enhancing the protection of nature conservation areas in the Netherlands.
We note that this particular aspect is constantly changing and developing (due to new case law) and it is therefore recommend to obtain (case specific) advice regarding this topic.
