In its ruling of 18 December 2024, the Netherlands’ Council of State ruled that if a project uses internal netting with legally permitted nitrogen emissions and depositions (intern salderen), a nature permit is required. The Council of State reverses a previously determined ruling that from 1 January 2020 this was not necessary. The new ruling will have an impact on many projects in the Netherlands, including projects that have already been permitted.

Impact of the ruling on projects

Internal netting of nitrogen deposition is the practice in which previously permitted nitrogen deposition is used to allow a new development. The ruling of the Council of State does not mean that internal netting is no longer possible, but a permit is now required. The permit application must demonstrate that the nitrogen emission allocation (emissieruimte) used for internal netting is not also needed to prevent the deterioration of nature areas. This requirement is called the “additionality requirement” (het additionaliteitsvereiste).

In the Netherlands, the government is obligated to achieve a favorable conservation status for Natura 2000 areas in the long term. This requires taking certain measures, one of which could be the withdrawal of previously permitted nitrogen emission allocations. If the government chooses to grant a new permit using a previously permitted nitrogen emission allocation (internal netting), the government must substantiate that the withdrawal of that nitrogen emission allocation is not necessary to protect the nature areas. In other words, if there are no other options to protect the nature areas, the government could be required to withdraw previously permitted nitrogen emission allocation. This means that this nitrogen emission allocation cannot be used to grant a permit for a new project.

Since Dutch nature areas currently do not have a favorable conservation status and the government is not yet taking sufficient measures to change this, it will not always be easy to substantiate that previously permitted nitrogen emission allocations can be used to allow a new project. It is therefore essential to prepare a well-substantiated permit application. This application must be coordinated with the relevant competent authority to ensure the measures they are taking to improve the nature areas can be incorporated.

The permit requirement applies to both new projects and projects that have been permitted since 1 January 2020 using internal netting. For new projects, this requirement applies with immediate effect. For projects that commenced before 1 January 2025, there is a transitional period until 1 January 2030.

We expect that this change in case law leads to uncertainty amongst developers and complex and lengthy permitting processes. If you would like to discuss the impact this ruling may have on your project, as well as possible solutions, please feel free to reach out to us.

This contribution was published in the January 2025 edition of the Pulse newsletter. Click here to access the other articles in this edition.