Expropriating farmers is even more difficult than expected. This threatens to further delay the already difficult approach to the nitrogen crisis. Experts warn against this, pointing to the consequences of the introduction of the Environmental Act on January 1, 2024. This act changes the legal procedure for expropriation, which means that the expropriation of farmers is expected to take more time. Other crucial elements, such as granting permits, may also be delayed by the new rules of the Environment and Planning Act.
The experts’ fears are in line with a warning issued by the Council of State last month in the annual report gave. The Council called the introduction of the Environment and Planning Act “risky” at “a time of major challenges in the field of infrastructure, energy transition, housing and nitrogen”.
Also read this article: The annual report of the Council of State seems to have been drawn up by a whistleblower who abandons the academic tone
The cabinet and provinces want to focus in particular on the voluntary buying out of farmers around nature reserves in order to significantly reduce nitrogen emissions. The cabinet does not rule out expropriation if too few farmers want to stop. The coercive measure will not start before January 2024, the cabinet previously communicated. This means that expropriation will fall under the new regime of the Environmental Act. This coincidental coincidence may now have unforeseen consequences for the nitrogen crisis that have hardly been discussed in the years of parliamentary debate on the Environment Act.
The law, the biggest change in environmental law in decades, merges dozens of laws and hundreds of regulations and should simplify procedures for spatial planning. The law was approved by the Senate in 2020, but its introduction was postponed five times, partly due to problems with the software that municipalities and provinces have to use. In March, the senate took the plunge: the Environmental Act will take effect on 1 January 2024.
Threshold profession is lowered
The House of Representatives will debate the nitrogen approach for the coming years again on Wednesday. Experts expect that an expropriation under the new law will take longer. Under the current law, they last an average of two years and now proceed as follows: a municipality requests expropriation through an administrative procedure, which the court then pronounces. There is no ordinary appeal against this, only cassation to the Supreme Court. That is a legally and financially high threshold. The procedure changes under the new law: the court must ratify the expropriation decision of the municipal council, after which an appeal is possible to the Council of State, a relatively simple and virtually free route for expropriated persons.
“The threshold for appeal will be lowered, so there is a good chance that every farmer will soon go to the Council of State,” says Gert-Jan de Jager, a lawyer for the Kneppelhout firm specializing in expropriation cases. “It will take a while before you have rulings in two instances, so expropriation will simply take more time.” Lawyer and professor of expropriation law Jacques Sluysmans (Radboud University) expects that the new appeal option could take a year more time and cases could take up to three instead of two years. Because it also often takes years to create a new zoning plan for farmland, expropriations that are prepared next year may only provide nitrogen space from 2028 onwards. Only a final expropriation counts towards reducing emissions.
This will be pioneering under new law. You don’t want that
Jacques Sluysmans professor
Found in 2019 the Advisory Committee on Land and Environmental Law of the Senate that the current procedure for expropriation has ‘an important sifting effect’, because many cases are now settled before they reach the court. The number of appeals will be “considerable” under the new regime, the commission predicted, with a number of negative consequences: “increasing pressure” on the Council of State, rising costs and longer procedures.
The fact that more cases will go to the Council of State is a problem, because it is already under great pressure. The Environment and Planning Act also prescribes that the Council must make a decision in a case involving environmental law within six months. It is very doubtful whether this is feasible: the administrative law department had about fifty vacancies at the end of last year and the backlogs and processing times of cases are already increasing. the Council recently warned.
Structure of jurisprudence
The Environment Act can delay the nitrogen crisis for another reason: after the introduction of a law, new case law must be built up, which takes time. The Council of State warned in its annual report that a major legislative amendment such as the Environment and Planning Act would lead to “numerous new (legal) questions, which will be litigated up to and including the highest court”. It may take years before ‘the associated uncertainty for implementation practice is removed’, the Council wrote. For the nitrogen crisis, this means in concrete terms that judges may need more time to reach final rulings on permits, which can delay construction projects, for example.
It was already a reason for the Council to call on Minister for Housing Hugo de Jonge (CDA) to introduce the Environment and Planning Act in phases, because this “could help prevent stagnation”. De Jonge ignored this advice.
Also read this article: Buying out is allowed, now you just have to find farmers who want to
Professor Sluysmans also fears that the introduction of the Environment and Planning Act will “unscrew” the certainties offered by the current law and could lead to years of legal uncertainty. For a decisive approach to the nitrogen crisis, the cabinet and provinces should have started buying out much earlier, says Sluysmans. He points to the successful expropriation of a number of farmers for the construction of new nature and nature management in the municipality of Krimpenerwaard in South Holland in recent years, under the current law. “Now you have to start pioneering under new law. You don’t really want that.”
The Interprovincial Consultation (IPO), the umbrella organization of the twelve provinces, says that it “cannot exactly predict the duration of future procedures”. The IPO says that expropriation is always “a long process and requires a lot of care”. The provinces are therefore focusing on voluntariness in the nitrogen crisis, “because this is often faster and more effective”.