Introduction
From 1 January 2024, the Environment Act will come into force. With its entry into force, it has been said that the biggest legislative operation has been completed since the introduction of the Dutch Constitution in 1848. Several previously existing separate laws and regulations have been combined into one law and four AMvBs with the Environment Act. With a legislative operation of such magnitude, (principle) choices are naturally made that bring about a change compared to the previously applicable law. So too in the context of the Environment Act. One area of the Environment Act where (principled) differences between the old and new law are also abundantly clear is planning damage law. In a number of separate contributions, some of these changes will be discussed in more detail and the (possible) consequences for practice will be considered.
This first contribution will consider some telling terminological differences between the old law and the Environment Act. It will focus on Chapter 15 of the Environment Act, entitled: ‘Damage’. Attention will also be paid to the connection with Section 4.5 of the General Administrative Law Act (Awb), which also entered into force on 1 January 2024.
Later contributions will address differences with regard to the reference date, the (planning) comparison to be made, the concept of damage, assumption of risk, normal social risk and transitional law. In each of these topics, there will probably still be an important task for the courts to settle points of principle (of dispute). That aspect, combined with the fact that the old law will remain in force under transitional law for quite some time, will undoubtedly create a lot of dynamism in case law in the coming years.
Plan damage
One imaginative example under the old law of planning damage was the amendment of a zoning plan that changes the surroundings of, for instance, someone’s residential property. Where previously there was an unobstructed view of, say, farmland or a forest, this changes to a view of, say, a new housing estate or a residential tower. This development may result in a decrease in the value of the property for a nearby owner (indirect damage). If, as a result of a new zoning plan, the zoning of an owner’s own plot (also) changed, resulting in a decrease in value, this is direct damage.
Under the old Spatial Planning Act (‘WRO’), compensation for planning damage was still referred to. With the introduction in 2008 of the now defunct Spatial Planning Act (‘Wro’) as a result of the Environment Act, this changed to compensation for damage. In other words, the idea of full compensation in the WRO was abandoned by the legislator with the introduction of the Wro. Under the Environment Act, it is expected that even less will be granted to compensation for damages. Among the reasons for this are the changed level moment, the new planning equation and normal social risk. Later contributions will address each of these topics separately.
Whereas planning damage law under the old WRO was already to a large extent judicial law, this line has been continued under the Wro. This is also nicely illustrated in the summary judgment of the Administrative Law Division of the Council of State (‘the Division’) of 28 September 2016 (ABRvS 28 September 2016, ECLI:NL:RVS:2016:2582). In this ruling, the Division, because of “the need in legal practice”, gave a nice and practice-useful overview of its case law in the area of planning damage law. It is expected that this overview ruling, in parts, will also serve well under the Environment Act. In addition, this overview ruling will in any event remain important for cases that will still be dealt with under the old law in the coming years under the transitional law of the Environment Act. This transitional law will also be discussed in more detail in a later contribution.
Environment Act
With the entry into force of the Environment Act, goodbye to the ‘zoning plan’. Instead, with the entry into force of the Environment Act, the ‘environmental plan’ makes its appearance. In addition, with the entry into force of the Environment Act, the concept of ‘physical living environment’ also made its appearance. Incidentally, the legislator did not specify what exactly is meant by the physical living environment. However, the legislator has made it clear in Section 1.2 of the Environment Act what it means in any case (including buildings, infrastructure, water, soil, air and nature).
Compared to the zoning plan, the environment plan has a broader scope in which it can also regulate subjects for which there was previously no place in a zoning plan under the Wro. With the environmental plan, for instance, the legislator offers a municipality more room to provide customised solutions for each location (flexibility and room for consideration) and thereby enable certain spatial developments based on (intended) faster decision-making. In particular, the wider scope and flexibility of the environmental plan are the reason why Chapter 15 of the Environmental Law introduced the necessary (far-reaching) changes to what used to be called planning damage law. Among other things, new damage-causing decisions have been brought under the scope of the Environment Act, such as, for example, a rule from the environmental plan, a tailor-made regulation, an environmental permit or a project decision (section 15.1 Environment Act).
Damage compensation
Under the law in force before the Environment Act, planning damage law was housed in section 6.1 of the Wro. In addition to the planning damage law in the Wro, there was also a separate system of loss compensation. There were similarities between the two systems, but certainly also differences.
Whereas the legislative process of the Omgevingswet had already started in 2010-2011 and its entry into force thus lasted until 1 January 2024, the legislative process of section 4.5 Awb (the Compensation for Damage Act) was running almost simultaneously. The choice was made to introduce Section 4.5 Awb at the same time as the introduction of the Environment Act. This was based on the idea that the entry into force of section 4.5 Awb prior to the entry into force of the Environment Act, could possibly result in an increase as well as widening of claims for loss compensation. In the Environment Act, Article 15.1(1) explicitly states that the regulation of Title 4.5 Awb only applies to the causes of damage as included in the exhaustive list in Article 15.1 of the Environment Act. This provision ‘curbed’ fears of an increase and widening of claims for loss compensation.
With the entry into force of Chapter 15 of the Environment Act, the term ‘plan damage’ was dropped and replaced by the term ‘loss compensation’. Thus, where previously there was a distinction between planning damage and loss compensation, there is no longer any such distinction and, for the purposes of the Environment Act, only loss compensation is referred to.
Concluding remarks
In the foregoing, the old planning damage law (WRO / Wro), the distinction between direct and indirect damage and the new system under the Environment Act with ‘loss compensation’ as a central concept have been discussed. The next contribution will discuss the changes brought about by the Environment Act in the context of the reference date and (planning) comparison.
More information
This contribution was written by Ben van Nieuwaal of LVH Advocaten. If you have any questions about this contribution, please contact us via the general number 0031 10 209 27 77.
