Introduction
As of Jan. 1, 2024, the Environment Act will be in effect. With its entry into force, it has been said that the largest legislative operation has been completed since the introduction of the Dutch Constitution law in 1848. Several previously existing separate laws and regulations have been combined into one law and four Orders in Council with the Environment Act. With a legislative operation of such magnitude, of course (principle) choices are made that bring about a change from 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 clearly emerge on is the law of plan damage / loss compensation. In a number of separate contributions some of these changes will be discussed in more detail and the (mo equal) consequences for practice will be considered. In each of these subjects, the judiciary will probably still have an important task in settling fundamental (points of dispute). This aspect, in combination with the fact that the old law will remain in force for quite some time under the transitional law, will undoubtedly create a lot of dynamics in case law in the coming years.
In the previous contribution, some terminological differences between the old law and the Om gevingswet were discussed, and attention was also paid to Section 4.5 of the General Administrative Law Act (“Awb”), which also came into force on January 1, 2024. This contribution will discuss the reference date and the (planning) comparison to be made.
The reference date
The reference date is an important benchmark for answering the question of whether damage is suffered as a result of a planning/spatial development. Under the old law (the Wro), the reference date was the da tum on which the alleged damage-causing decision (e.g., a zoning plan) entered into force, regardless of whether the planning development that was permitted was actually realized. This interpretation of the reference date was abandoned when the Environment Act entered into force. Under the Environment Act, the reference date for loss compensation (after all, the term “planning damage” has been abandoned) is the moment that the damage actually occurs. That moment can be the moment the permit is granted, the start of the activities or the moment the competent authority is informed about the start of the activities.
The amended reference date under the Environment Act stems in part from the global scope of the environmental plan. After all, the environmental plan does not have to describe in detail what is or is not permitted at a location. The amendment of the reference date is particularly intended to tie in with the moment when something actually changes in the physical environment. Under the old law, planning damage could occur as a result of ‘merely’ changing the planning regime (e.g. the amendment of a zoning plan) without the permitted development being realized. Under the old law, this could therefore result in compensation of theoretical damage. After all, what was permitted from a planning perspective could – although not (yet) realized – already result in planning damage as a result of the modified planological working conditions. With the introduction of the Environment Act, the possibility of theoretical damage has been abandoned with regard to the changed reference date.
The (planning) comparison
Besides a different reference date, the changed comparison under the new loss compensation scheme in the Environment Act also stands out. Illustrative of the comparison under the old law (Wro) is the ruling of the Administrative Law Division of the Council of State (“the Division”) in the Hardenberg case (ABRvS January 24, 2024, ECLI:NL:RVS:2024:225) in which it is considered: “For the assessment of an application for compensation for planning damage, it is examined whether the applicant has been placed at a disadvantage as a result of the relevant change in the planning regime and suffers or will suffer damage. To this end, a comparison is made between the post-impact modification of the planning regime, which is claimed to have caused damage, and the immediately preceding planolo _COPY0 gical regime. In that far ge comparison, in principle the most unfavorable in filling of the possibilities of the old and new planning regime is assumed. Only if the most un favorable fulfilment of these possibilities can be excluded with a probability bordering on certainty, there is reason to deviate from this starting point.”
The old planning damage regulation under the Wro thus had a highly theoretical assessment with a high level of abstraction whereby damages were, in principle, assessed in one go. An exception to the principle of plan maximization concerned the case where realization of the maximum construction or use possibilities could be excluded ‘with a probability bordering on certainty’ (e.g. as a result of private law obstacles). Under the Environment Act, at least in the case of indirect damage in the form of decrease in the value of an immovable property, a different course will be taken. Instead of the planological comparison (the maximum planological infill), under the Environment Act, Articles 15.3 and 15.4 are about comparing actual situations (in short, what has been and is being realized?). In this context, a parallel can be drawn with the other reference date discussed above, which after all corresponds to the moment when something actually changes in the physical living environment. Whether this method of comparison also applies to direct damage in the form of decrease in the value of an immovable property or in the case of loss of income has not been determined by the legislator and will therefore probably have to be determined by the administrative courts in the coming years.
Illustrative of the manner in which the (planning) comparison takes place under the Environment Act is the comment in the Explanatory Memorandum (Parliamentary Papers II 2018/19, 34986, no. 3, pp. 229 / 236) which notes: “………. in cases as referred to in Articles 15.1, second paragraph, ge read in conjunction with Articles 15.3 and 15.4, (damage) will not (…) be determined on the basis of a far equation between the maximum possibilities of the old and new regime, as is the case under the Wro. Instead, the determination of damages in those cases will focus, much more than is currently the case , on the actual situation. Determining the extent of the damage here ties in with the changes actually made to the physical environment. (…) Article 15.3 leads to the fact that in the case of indirect damage, the decrease in the value of an immovable property is determined on the basis of the actual situation before and after the granting of the environmental permit.”
In practice, the comparison that will have to be made under the Environmental Law still raises the necessary questions. After all, if the actual situation must be taken into account, should the (previous) local planning regime be completely ignored (by a surveyor)? Even if that could have major consequences and to that extent already cast its shadow far ahead? Consider, for example, the pla no logical possibility of establishing a business at a short distance across from a detached house that would then have to be disregarded. Disregarding such effects of planning pressure on value ken can lead to a higher house value in an appraisal than if these effects had been taken into account (overestimation). Whereas the changed reference date prevents compensation of the o re ti sche damage (see above), the regulation of the Environmental Law with respect to the pla no lo gical comparison may result in compensation of theoretical damage because, in the example given above, the house value is overestimated / appraised (after all, abstracted from the disadvantageous planning possibility of establishing a business in the vicinity of the house). Among other things, the administrative law speech will have to provide clarity on this and related questions.
Closing Remarks
This contribution discussed the reference date, theoretical damage and the modified equation for assessing a request for loss compensation. The next contribution will discuss the changes brought about by the Environment Act with regard to the concept of damage.
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This contribution was written by Ben van Nieuwaal of LVH Advocaten. If you have any questions about this contribution, please contact us at the general number 010 – 209 27 77.
