One of the pillars of the Dutch Environmental and Planning Act (Omgevingswet), which went into effect 1 January 2024, is "participation." The new law governs the physical environment in which Dutch citizens live, work, and enjoy leisure time and replaced almost all existing planning regulations in The Netherlands. The idea is to reduce objections and legal proceedings by involving third parties, such as residents, in an early stage of a development. Moving forward, permit applicants must now indicate if and how participation took place and whether this led to any changes in the project. Participation itself is in principle not mandatory.
Yet, this "participation requirement" in the permit application raised the concern with developers that a project would only be possible by ensuring extensive participation and reaching consensus with otherwise unaware third parties. Recent case law demonstrates this does not have to be the case (Rechtbank Noord-Holland 5 maart 2024, ECLI:NL:RBNHO:2024:3117, Rechtbank Gelderland 11 april 2024, ECLI:NL:RBGEL:2024:2126).
In both cases, the preliminary relief judge confirmed that the form and extent of participation depend on the project or activity. For these cases, participation was sufficiently achieved by informing residents of the project via letters, by having a website, and/or by organizing information sessions. The judge also explicitly stated that participation implies neither consensus nor unanimous support for decisions by the interested third parties.
These early rulings on participation provide a starting point for developers. For smaller projects, such as a limited expansion of a business premises, no participation may be required, or it may be sufficient to only inform the neighboring businesses, keeping the permit applicant in the driver's seat for its own project. As case law develops in this area, we will get more clarity on the "participation requirement."
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