July 7, 2021
Netherlands, Opinions

New wind parks in the Netherlands frustrated by court ruling

Article by Marijn Bodelier, Jan Herfkens | Greenberg Traurig, LLP | Tuesday, July 6, 2021 | www.natlawreview.com

On 30 June 2021, the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) issued its judgment in a case regarding the provincial executive (Gedeputeerde Staten) of Groningen’s permit issuance for the expansion of a wind park close to Delfzijl. According to the Administrative Jurisdiction Division, the general wind turbine standards currently used to license the realization of the majority of wind farms do not comply with European rules. The current Dutch standards are included in the Activities Decree (Activiteitenbesluit) and the Environmental Management (Activities) Regulations (Activiteitenregeling).

This judgment is the direct result of the EU Court of Justice’s Nevele judgment (which the appealing parties in the Delftzijl case also referred to). The EU Court ruled in the Nevele case that under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, an environmental assessment (milieubeoordeling) should be carried out in line with the Directive for various wind farm effects (regarding noise, shadow flicker, and safety) prior to issuing permits for placing wind turbines. According to the EU Court, Belgium unlawfully failed to do so, and in the Netherlands, such an environmental assessment was not made for the statutory norms for wind farms.

Pursuant to the judgment of 30 June 2021, the Dutch government will be required to prepare such environmental assessment. In the meantime, the current wind turbine norms cannot be used as a basis to issue permits for wind farms without performing an environmental impact report (milieueffectrapportage), which is time-consuming and means that various projects will be put on hold.

Yet, the ruling does not mean that new permits for wind farms cannot be issued in the meantime. According to the judgment, a city council (raad) can set its own standards in a zoning plan (bestemmingsplan) which applies to a wind farm. As long as these standards are properly substantiated, they can be used for permit issuance. However, such an individual approach for wind farms (instead of a more generic statutory framework) will likely impede the large-scale realization of wind farms where various zoning authorities are involved.