Blog: The impact of the Environment & Planning Act on the sustainability of data; nothing new, but different

Reports, studies and/or data must not be too old under the Environment & Planning Act (Dutch: Omgevingswet) and the Environment & Planning Scheme (Dutch: Omgevingsregeling), which will be effective from 1 July 2022. Studies on the implications and impact of for example a wind farm, a solar park or a battery storage are required in order to apply for a permit. We will discuss the requirements under the Environment & Planning Act in this blogpost.

In brief:

Data were supposed to be up-to-date in the past, and this still applies today. There are only some limited changes.
The Environment & Planning Act provides that reports and data must not be more than two years old, subject to substantiated evidence that they are sufficiently up-to-date.
For Natura 2000 / species protection, the latest data must not be more than three years old.

Key tips:

Address the up-to-date status of the data used for reports, considerations and applications.
Remember that the benchmark is the moment of decision-making; two or three years will pass in no time!
Be explicit: make sure to mention what data is needed, whether these data are up to date and why these data are sufficient to assess impacts.

Obviously, these requirements are already subject to compliance for projects that will be initiated under the Environment & Planning Act.

How do we actually deal with data sustainability?

Even today, under the current laws, such as the Wabo (Act on the general provisions of environmental law), Wnb (nature conservation Act) and Wm (environmental management Act), it goes without saying that up-to-date data must be used. For space and environment this is an explicitly established period (not more than two years old), for nature this is implicit/jurisprudence; also refer to the comparison of former and new rules below. A spatial plan cannot be established and a permit or exemption cannot be granted with due care if the current situation is not taken into account. And due care is required by virtue of art. 3:2 of the General Administrative Law Act. (However, this is not necessarily an explicit consideration).

What will change regarding data sustainability?

Also under the Environment & Planning Act, the fact that used data must not be too old is explicitly established. The Environment & Planning Act refers to a maximum of two years. In addition, an explicit requirement for sustainability applies to activities that affect Natura 2000 areas or protected flora and fauna, which is a new element. The most recent data may not be more than three years old. The text boxes below show the legal text from the consolidated versions of the Living Environment Information Point (www.iplo.nl). The underlining has been added by me.

Sustainability of data, except nature

Reports containing data, studies or inventories should basically not be more than two years old. The wording is general, which is why the continued effect influences studies of archaeology, soil quality and, depending on the project, perhaps also market developments (such as retail) or demographics (such as residential areas). This may be differed from when substantiated evidence is provided that the data are still up to date. Factually not new: it will help to be explicit about this. Reasonable and useful. The lead time of preparation and decision-making is a relevant point of consideration. Two years pass by in no time at all. After all, research is often the first step towards the development of a project, followed by a permit application and decision-making. If necessary, a supplement or statement of the up-to-date status can be sent later.

Tekstvak: AT PRESENT: BRO (spatial planning decision) Article 3.1.1a
When adopting a zoning plan, data and studies can in any case be used that are not more than two years old.
AT PRESENT: Wm (environmental management Act) Article 13.5, paragraph 1
For the issue of a decision as referred to in Article 13.1, the competent authority may in any case base itself on data and studies that are no more than two years old.
IN THE FUTURE: OW (environment & planning Act) Article 16.5 (sustainability of research data)
1. When making a decision under this Act, the reports containing data, studies or inventories may in any case be used, which were used in the draft decision or, in their absence, in the application and which are not more than two years old when the decision is made.
2. When making decisions under this Act, data from reports of more than two years old at the time the decision is made may also be used if substantiated evidence can be provided that the data are still up to date.
3. Subsection 1 does not apply to decisions concerning a Natura 2000 activity or a flora and fauna activity. — Framework general regulations for the sustainability of research data at present and in the future

I believe that the Environment & Planning Act continues the current situation, although it is additionally clearly stated that there is scope for the use of older data. It is perhaps advisable to be a little more explicit than before in mentioning the up-to-date status of reports.

Sustainability of natural data

Article 16.5 paragraph 3 of the Environmental Act states that the condition for sustainability does not apply to Natura 2000 and flora and fauna activities. A specific provision is only found for flora and fauna activities. For Natura 2000 activities, it is reasonable to assume that the requirements are of a similar level.

The Environmental Scheme (article 7.197j paragraph 2 b of the scheme) – please also refer to the box below – provides that the most recent data in a natural-values study must not be more than three years old. A natural-values study is part of an application for a flora and fauna activity and describes, for instance, the presence of species and the size of the populations of those species present (prescribed in article 7.197j paragraph 1 e of the scheme).

As is the case with other information, the fact that the information must be sufficiently up to date applies already. The rule of thumb is usually three to five years for ecological studies. However, based on the Environmental Scheme, three years is currently the minimum for the most recent data. I believe that an explicit justification of the data used will be useful to give substance to this requirement. The scope of ‘the youngest’ data requires an ecological justification focused on the species or conditions for which this is relevant.

Based on the practice of projects, the following items seem reasonable and logical to me:

Information on the presence of species must be sufficiently up-to-date; the distribution of species may change in a number of years. Again: this is not new in itself, but now explicitly required.
Logically, this should only be relevant for species subject to a potential impact. For example, there is no point in conducting research on bats if the project has no potential impact on them.
The up-to-date status has different time frames: behavioural characteristics do not or hardly change with time, but appearance can change within a shorter time frame.
Make an assessment from an expert’s perspective of what is needed: is field research required or can an assessment be made on the basis of the characteristics of an area (the ‘habitat’). (To put it simply: you won’t find forest animals in a meadow).
As is the case with the other tips: allow for lead times and make the up-to-date status explicit, especially since a legal requirement applies.

Tekstvak: AT PRESENT:
Practice and case law dictate that data should not be too old, indicatively 3-5 years.
IN THE FUTURE: OR (Environment & Planning Act), Article 7.197j (module: flora and fauna activity)
2. The natural-values study referred to in subsection 1(e):
a.[..]
b. contains data, the latest of which are not more than three years old, or less if the location and the area around the location where the activity is performed have changed substantially in the period between the research and the application. — Framework for the sustainability of research data on nature: at present and in the future

A peculiar aspect is that no explicit deadline has been established for the Natura 2000 activity. For these decisions too, it will have to be clear that the data used are sufficiently up to date to allow for careful decision-making.

In conclusion

I believe that the key point of consideration is the extent to which detailed information is needed compared to the extent to which detailed information is requested. More and more up-to-date data can be requested quickly. However, it is not always easy to obtain more up-to-date data. For example, seasonal variation, the practical possibilities (such as how to determine the national population of a frog species) or the minimum research periods must be taken into account. This has consequences in terms of time and money. These should not be reasons to assume there are insufficient data. There is, however, a reason to consciously consider what information is needed for an impact assessment and for decision-making. The good thing is that this is nothing new.