A new legal ruling has taken place in the Netherlands in favour of an environmental activist group that could spell delays for many construction projects.
Until now, the Dutch government had operated a 'building exemption' which differentiates between the construction and the use of a construction project when it comes to nitrogen rules. But that has been deemed not legally valid by the Council of State in the so-called Porthos case. A nature permit must now be applied for to pursue every construction project.
According to an article by sister-title, PropertyNL, Porthos is a construction project in the port of Rotterdam. The appeal against this project was lodged by environmental organisation Mobilisation for the Environment (MOB).
In 2019, the organisation successfully challenged the government's nitrogen policy (PAS). As a result, many thousands of construction projects were immediately stopped at the time.
According to The Council of Public Health & Society, which is an independent advisory body to the Dutch government, the nitrogen building exemption does not comply with European nature conservation law. The Administrative Jurisdiction Division of the Council of State can therefore only conclude that the building exemption may not be used in construction projects.
However, although the building exemption is off the table, that does not mean that there is now a general pause in construction.
As in the situation before the building exemption was introduced, it remains possible to conduct research on the possible consequences of nitrogen emissions for each project. This is stated in an interim ruling of the Administrative Jurisdiction Division of the Council of State of 2 November 2022 in the case about the Porthos project.
Consequences
That said, the consequences for builders and developers are large. Many parties had already anticipated this judgement by making nitrogen calculations for their projects themselves.
However, PropertyNL reports it is obvious that projects will be delayed, now that a nature permit must be applied for on every project.
Large housing projects in the vicinity of Natura 2000 sites are particularly at risk of delays.
