For the general standards for noise, cast shadow and safety that apply in the Netherlands for the construction and use of wind turbines, an environmental assessment must be made on the basis of European law. The Dutch government will now have to make such an environmental assessment. Until that time, the general standards in the Activities Decree (Activiteitenbesluit) and Activities Regulations (Activiteitenregeling) may not be used for wind farms. This follows from an interlocutory judgment of the Administrative Jurisdiction Division of the Council of State on 30 June 2021.
The ruling specifically concerns the zoning plan ‘Windpark Delfzijl Uitbreiding’ and the environmental permit for the construction of sixteen wind turbines in Delfzijl. However, this ruling also has consequences for similar spatial decisions for wind farms in the Netherlands.
Nevele judgment of the European Court of Justice
The ruling is the result of the so-called Nevele judgment of the Court of Justice in Luxembourg in June 2020. In this judgment, the European Court ruled in a case about a Belgian wind farm that an environmental assessment must be carried out for a number of wind turbine standards pursuant to the European Strategic Environmental Assessment Directive and that this had wrongly been omitted.
In several proceedings before the Administrative Law Division on wind farms, including this case about the expansion of the wind farm in Delfzijl, the objectors have argued that this ruling by the European Court also has consequences for the wind turbine standards in the Dutch Activities Decree and the Dutch Activities Regulation. According to them, European law forces an environmental assessment to be made for the Dutch wind turbine standards as well.
Environmental assessment required
The highest administrative court assessed the Dutch wind turbine standards against the criteria used by the European Court in its ruling. Especially important is the fact that the wind turbine standards are a plan or programme based on a European environmental directive. On the basis of the interpretation which the European Court of Justice gives to this in the Nevele judgment, the Administrative Jurisdiction Division is of the opinion that the European judgment leaves no room for any other conclusion than that an environmental assessment should have been made for the Dutch wind turbine standards.
Dutch government to act
The consequence of the ruling is that authorities may not use the wind turbine standards in the Activities Decree and Activities Regulations for wind farms until an environmental assessment has been made. It is now up to the government to make such an environmental assessment. When that assessment has been properly completed, authorities will again be free to adhere to the wind turbine standards that may then have changed.
The ruling means a lot for the decisions that still have to be made for the new wind farms and for the cases that are still pending before the Council of State, on which the same appeal has been made. They will have to wait until the environmental assessment has been made. For existing wind farms, this ruling does not change anything in principle, as Press Council Judge Rosa Uylenburg explains.
Governments do not have to comply with standards
The ruling does not mean that no new decisions can be taken on wind farms in the meantime. In a zoning plan, the municipal council is not obliged to adhere to the wind turbine standards from the Activities Decree and Activities Order. It can set its own standards in a zoning plan, as long as these standards are properly substantiated for the specific zoning plan.
In this case, the Eemsdelta municipal council has indicated that it wants the opportunity to restore the zoning plan and the environmental permit by setting its own standards for the wind turbines. The Administrative Jurisdiction Division has given the municipal council 26 weeks to do so in today’s interlocutory ruling. After that, the Administrative Law Division will issue a final ruling on the zoning plan and the environmental permit for the wind farm.
About Delfzijl Zuid Uitbreiding
The Delfzijl Zuid Uitbreiding plan provides for sixteen wind turbines with a maximum tip height of 204 m in the area to the south of the current Delfzijl Zuid wind farm. The installed capacity is expected to be around 64 MW, assuming about 4 MW per wind turbine.
The initiators of the project, united in the Koepel Windpark Delfzijl Zuid-Uitbreiding, are ZuidZes B.V., Eneco Wind B.V., Kloosterlaan B.V. and HiNerg B.V. Ventolines has been appointed for the development.
The Dutch wind sector organisation finds it positive that the Council of State has decided to rule quickly on the Nevele judgment. In its reaction, it calls on behalf of the wind sector for speed, so that procedures for new projects do not cause a long and unnecessary delay. Source: Raad van State (This is a translation of the original Dutch ruling. We have tried to translate it truthfully. If you see an error, please send an e-mail to firstname.lastname@example.org).