To determine where what environmental regulations apply, the term “establishment” is used. The ‘establishment’ is in fact the location where the business activities take place. It is important to know where the boundaries of the establishment are, because otherwise the impact of the activities on the environment cannot be properly determined. An application for an environmental permit or notification under the Environmental Management Act must therefore be accompanied by a map showing the boundaries of the establishment. As a rule, an application or notification must also be accompanied by studies on environmental consequences emanating from the establishment, such as noise. Some time ago, the highest administrative judge in environmental matters, the Council of State for short, issued a ruling on the consequences for an environmental permit if there is a discrepancy between the floor plan and the acoustic survey.
What was going on?
An application for an environmental permit had been submitted. This was for a company that also performs work on ships moored at the quay. according to the plan attached to the application, these moored ships did not belong to the establishment. An acoustic study was also included with the application. This acoustic study also included the noise from the work on and to the ships moored at the quay. During the work, (part of) the crew remained on board. This hotel function also caused noise pollution for local residents.
In the decision to grant an environmental permit, the Municipal Executive based its decision on the floor plan and did not include any regulations on noise pollution caused by the hotel function. It was argued by local residents that this noise pollution should also be included in the assessment and that regulations should be made about it.
What does the Council of State say?
It is up to the applicant to determine which (changes to the) establishment he wishes to obtain a permit for.
The Municipal Executive must assess on the basis of that application whether this permit can be granted. On the one hand the application, in view of the boundaries it describes, does not relate to an establishment of which moored ships are part and on the other hand, in view of the activities it describes, it does relate to them. The application is therefore not clear about the scope of the establishment.
Because the environmental permit states that the application is part of the permit, the environmental permit is also ambiguous about the size of the establishment. The ships moored at the quay do not belong to the establishment according to the plan, but the noise originating (from work on) these ships is included in the acoustic investigation. Nor do the reasons for the decision to grant the permit provide the required clarity. The lack of clarity about the establishment’s boundaries prevents a proper assessment of the environmental consequences.
The decision to grant the environmental permit was therefore not carefully prepared in violation of Article 3:2 of the Awb. The environmental permit is annulled. The college must make a new decision on the application.
Lessons for practice
The ruling again underscores the need for careful licensing. It is important to properly describe in the permit what activities have been assessed.
Always assess whether it is really necessary to declare the application part of the permit. This is not required by law but it is often still an automatism among permit issuers.
For applications and notifications, assess whether the documents are unambiguous about the boundary of the facility.
Continue reading
The recently published issue of JM Jurisprudence on Environmental Law includes two of my commentaries on decisions of the Council of State. One of these annotations deals with the judgment discussed above; you can read it here. The other annotation deals with the extent of so-called exceptive review of generally binding regulations and can be read here.
This article was written by Mr. Ernst Plambeck , affiliated with the Government Practice Group.
