The Netherlands – Response to Case 2009
1. Legislation for renewable energies and energy efficiency
Question 1 reads: Is there legislation in your country concerning the use of renewable energies or energy efficiency? Can municipalities create their own (or higher) regulations?
To answer this question for Dutch law, we have to break it down into three sub questions.
1a: Is there legislation in your country concerning the use of renewable energies?
Answer (1a): There is no Dutch legislation specifically concerning the use of renewable energies.
Renewable energies do not have much attention in Dutch legislation. The only form of renewable energy that has some attention in Dutch legislation is: energy generated by wind turbines. However, there is no special act for renewable energies, nor separate acts for specific forms of renewable energies such as wind energy, underground heat and cold storage, solar energy, tides or geothermal energy. In fact, the only form of renewable energy that is used on a reasonable scale in the Netherlands is wind energy. Still, the existing wind turbines in the Netherlands meet only about 4% of Dutch energy requirements. A second form of renewable energy that is regularly used in The Netherlands is heat and cold storage. There are currently about 1000 open systems for heat and cold storage in The Netherlands. The total capacity of these systems is 300 Megawatts. Geothermal heat − a third form of renewable energy − is only practiced at one location in The Netherlands1.
There are no regulations regarding compulsory use of renewable energies, such as a percentage of the total use of energy. Dutch regulation in this field is based on voluntariness: private customers canchoose to buy ‘green energy’ from their energy supplier in stead of energy that is non-green. Another example of voluntariness is the availability of subsidies if a house owner wants to install solar panels on his roof. Recently the subsidy budget for solar panels is enormously increased.
1b: Is there legislation in your country concerning energy efficiency?
Answer (1b): Yes, there is legislation concerning energy efficiency. Most important are the regulations for the energy performance coefficient and for the energy performance certificate.
Energy performance coefficient for new buildings
The act governing this topic is the Housing Act. To be more specific, this matter is provided for by an order in council based on the Housing Act: the Building Decree (Dutch: Bouwbesluit). The Building Decree (art. 5.11) requires that the so called energy performance coefficient (Dutch: energie prestatie coefficient) for a new building does not exceed a certain number. The application for a building permit must be accompanied by a calculation of the energy performance coefficient of the design of the building. The lower this number, the more energy efficient a building is. Between 1996 and 2009 the energy performance coefficient has been lowered – through amendments of the Building Decree – for housing from 1,4 to 0,8. This means that new houses have become far more energy efficient! For offices, shops and schools other energy performance coefficients exist. The way the energy performance coefficient is being realised (which measures are being taken in the building) is not prescribed in the Building Decree.
Energy performance certificate
Directive 2002 / 91 / EG (the Energy Performance Building Directive) obliges EU member states to implement a system of certificates showing the energy performance of buildings. This obligation has been implemented in the Netherlands through the Decree on Energy Performance of Buildings (Dutch: Besluit energieprestatie gebouwen). Since January 1st 2008 in every house and utility building that is being sold or let an energy performance certificate must be present. An energy performance certificate is specific for one building. It shows − based on a calculation − the amount of energy that is needed for the use of the building. It deals with energy for heating the building, hot water supply, lighting, ventilation and cooling. Each certificate holds possible measures that can be taken to improve the energy performance of the building.
It is interesting to note that the Netherlands for a long time opposed against the European obligation to implement energy performance certificates. Reason behind the opposition was the fear for another − money taking − bureaucratic obligation for civilians and companies. Only certified advisors may deliver an energy performance certificate. In practice, the obligation to have an energy performance certificate is not well observed.
All in all the Netherlands legislation is in agreement with the demands of Directive 2002 / 91 / EG, the Energy Performance Building Directive.
1c: Can municipalities create their own (or higher) regulations?
Answer (1c): No.
From a legal viewpoint, this question is the most interesting one.
Article 44 Housing Act provides for a limited set of grounds that must be used to refuse an application for a building permit. Only these grounds can be used by the municipal executive to test applications for building permits against. One of the grounds for refusal is the Building Decree. The Building Decree holds, as explained above, a fixed energy performance coefficient. The Building Decree is a national document, so individual municipalities cannot change the energy performance coefficient.
Dutch planning law does hold the obligation for municipalities to adopt a ‘building ordinance’ (a local building bye law, in Dutch: bouwverordening). And in case of conflict between a building plan and the regulations of such a building ordinance, the building permit must be refused. So, the regulations of a local building ordinance are a ground to refuse a building permit (art. 44 Housing Act). However, the Housing Act explicitly restricts (art. 8) the topics that can be covered by such a local bye law. Renewable energies or energy efficiency are not mentioned as topics that can be covered by a local building bye law and are thus not allowed.
Autonomous municipal bye laws
Is a municipality authorised to adopt a ‘loose standing’ or ‘autonomous’ bye law, in which it sets its own, higher, regulations? To answer this question we must make a distinction between renewable energy and energy efficiency.
Is a municipality allowed to adopt an autonomous bye law in which it sets a sharper energy performance coefficient than the Building Decree? No. The legislator wanted the regulations of the Building Decree to be exhaustive.2 That is: if a topic is regulated in the Building Decree, municipalities do not have the freedom to regulate it in an autonomous bye law. Since energy performance is regulated in the Building Decree, there is no freedom for municipalities.
One could wonder if the same goes for the use of renewable energies. Is a municipality allowed to adopt an autonomous bye law in which it sets technical requirements for the use of renewable energies? This topic is not covered by the Building Decree, so this leaves room for the opinion that a municipality has the freedom to regulate it in an autonomous bye law. However, even if a municipality is allowed to cover this topic in a bye law, this could not be used to test applications for building permits against! Indeed, such ‘autonomous’ bye laws are not mentioned as one of the limited grounds to test applications for building permits against (article 44 Housing Act).
Private law agreements with developers
Since the possibilities for municipalities to create their own, higher regulations are very limited, municipalities may try and use private law agreements with property developers to get more environmentally friendly buildings.3 This kind of agreement could be used in case of land allotment: a municipality selling land to a private property developer. Is it allowed for them to conclude an agreement in which an energy performance coefficient is set that is more strictly than the Building Decree? No, this is forbidden.4 Article 122 Housing Act forbids municipalities to use agreements to circumvent the Building Decree. Energy performance is a topic that is covered by the Building Decree. The municipality is thus not allowed to sell land to a developer on the condition that the developer builds houses on it with an energy performance that is lower than the Building Decree.
Of course, there is no legal problem if a developer entirely voluntarily offers to build houses with an energy performance that is better than the Building Decree.
Renewable energies are not covered by the Building Decree. This leaves room for the opinion that a municipality is allowed to sell land to a developer on the condition that the developer builds houses on it which use (a certain percentage of) renewable energies.
Subsidies
What about subsidies? Is it allowed for a municipality to grant subsidy for a housing scheme on the condition that the houses meet certain requirements in the field of renewable energies? Or if an energy performance is achieved that is higher than the Building Decree? Yes, this is allowed. So, a municipality can stimulate a higher level than the level of the Building Decree, but can not enforce it through public law or private law.
2. Special regulations in planning law
Question 2 reads: Are there special regulations for renewable energies or energy efficiency in planning law? Has the legislation mentioned in question 1 influence on the planning law? E.g. by setting requirements concerning the use of renewable energy for the energy supply or a standard for energy efficiency of building areas?
In answering this question we must make a distinction between (2a) renewable energy and (2b) energy efficiency.
2a: Are there special regulations for renewable energies in planning law?
Answer (2a): Dutch planning law does not set requirements concerning the use of renewable energyfor energy supply.
Dutch planning law does have special regulations concerning wind turbine parks, but these regulations do not relate to the use of wind energy, but refer to a situation in which local authorities are not willing to localise a large scale wind park on their territory. In planning law terms: the local authorities are not willing to adopt their land-use plan to the new wind park.5 I will explain the relevant provisions in short.
The relevant provisions are laid down in article 9b of the Elektriciteitswet 1998 (1998 Electricity Act).6The article came into effect on 1 March 2009.7 Article 9b determines that special national planning procedures are applicable to the construction or extension of:
a production installation (…) with a capacity of at least 100MW, if the installation in question is to be used for the generation of renewable energy with the aid of wind energy.
Article 9b of the 1998 Electricity Act refers to special procedures which are relevant to these large scale projects: a special regulation for the planning level (art. 3.28 or 3.29 Spatial Planning Act) and a special regulation for the permit level (art. 3.35 paragraph 1, item a Spatial Planning Act). These special procedures aim to shorten and streamline the planning procedure, and hence to speed up the statutory decision-making process.
Article 9b of the 1998 Electricity Act makes it clear that that the applicability of these special procedures is not dependent on any potential opposition from a municipal council or citizens against a wind turbine construction scheme, but rather on the size of the project (100 MegaWatt or more). Furthermore, article 9b of the 1998 Electricity Act makes it clear that this article does not itself contain the special procedures, but refers to the Spatial Planning Act in this regard. It is this last-mentioned Act that contains provisions concerning the special procedures. It may be noted that these special procedures can also be applied to projects other than the construction of large wind parks.
What does application of the central government coordination regulations involve? The first point to note is that the ministers of Economic Affairs and of Housing, Spatial Planning & the Environment (Dutch abbreviation VROM) are responsible for application of the special procedures in the case of wind parks. As mentioned above, application of the national coordination regulations has consequences for the decision-making process at both the planning level (land-use plan) and the permit level.
As far as the planning level is concerned, it follows from article 3.28 of the Spatial Planning Act that it is not the municipal council that determines the land-use plan for the project; instead, the ministers adopt an imposed land-use plan (rijksinpassingsplan in Dutch). Such a rijksinpassingsplan plan is in fact a land-use plan made by the central government. This represents an exception to the rule that a land-use plan should be made by the municipal council. The planning powers are thus moved to national level.
As far as the permit level is concerned, it follows from article 3.35, paragraph 1, item a of the Spatial Planning Act that the various licensing procedures (relating for example to building permits, environmental management permits and permits pursuant to the Nature Protection Act) should be coordinated. All decisions necessary for the execution of the project are made by applying the uniform public preparation procedure laid down in section 3.4 of the Algemene wet bestuursrecht(General Administrative Law Act; Dutch abbreviation Awb). This stipulates that all project permits and the national imposed land-use plan relating to the project must be simultaneously made available for inspection. Anyone is entitled to submit views concerning the draft decisions. Following appraisal of these views by the qualified bodies, the national imposed land-use plan and all relevant permits are determined at the same time. Interested parties are then entitled to appeal against the national imposed land-use plan and the permits to the Administrative Jurisdiction Division of the Council of State. A ruling will be made within six months of receipt of the appeals.
No one – not even the municipal councils involved – has any recourse in law against the decision to apply the coordination regulations. However, as indicated above, recourse in law is available against the ‘content’ of the coordination regulations, in the form of the right to submit views and the right to appeal against decisions.
The purpose of the procedure is to group and synchronize the various planning procedures, thus saving time. The ministers have far-reaching powers. They can overrule an administration which has the duty to take a decision concerning the application for a permit if that administration does not take the decision, does not take it in time or does not take it correctly in the eyes of the minister (art. 3.36, paragraph 1 Spatial Planning Act). The ministers can declare municipal regulations that hinder the execution of a project invalid (art. 3.35, paragraph 8 Spatial Planning Act).
2b: Are there special regulations for energy efficiency in planning law?
Answer (2b): Dutch planning law does set requirements concerning energy efficiency. However, the regulations for energy efficiency do not apply to building areas, but to individual buildings. The regulation referred to is the energy performance coefficient that was described above. The energy performance coefficient has a clear relation with planning law. Indeed, a building permit will be withheld if the design of the building does not meet the minimum coefficient as laid down in the Building Decree. This follows from article 44, paragraph1, under a, Housing Act.
The Dutch energy performance certificate − described above − does not have a relation with planning law. The existence of such a certificate is looked after by the civil-law notary. The notary shall point out to the seller that he is obliged to hand over an energy performance certificate to the buyer. And he shall point out to the buyer that he has a right to the energy performance certificate. This, as said before, has nothing to do with planning law.
3. New buildings and existing buildings
Question 3 reads: Does legislation (questions 1 + 2) only affect the planning for new buildings or does it also affect existing buildings? If yes, describe how.
Answer (3): The Dutch legislation as described above only affects new buildings and only affects energy efficiency (not: renewable energies). It does not affect existing buildings. Two points are of legal relevance here.
First has to do with ‘acquired rights’. At a certain moment in the past a building permit was granted for these buildings and thus the owners have ‘acquired rights’. They cannot simply be forced to alter their homes. Of course, they can be stimulated to alter their homes in order to meet the requirements for new buildings. An instrument for this could be ‘subsidies’. But this, of course, is a way of voluntarily compliance.
Second point has to do with article 2, paragraph 2 and 4, Housing Act (Dutch: Woningwet). This article explicitly states that as far as existing buildings is concerned the provisions must be limited to safety, health and utility. This excludes the topic ‘energy efficiency’. The provisions for existing buildings in this respect deliberately differ from those for new buildings. Indeed, article 2, paragraph 1, Housing Act states that as far as new buildings are concerned, technical regulations relate to safety, health, utility, energy efficiency and environment. 8
Renovation
If an owner renovates, changes or enlarges an existing building, he does not have to meet the requirements for energy efficiency that apply to new buildings! This is laid down in article 5.14, paragraph 2, Building Decree. Only if the owner completely renews his building, he has to meet the requirements for energy efficiency for new buildings (art. 5.14, paragraph 1, Building Decree).
4. Conclusions
Dutch legislation has very little attention for renewable energies. Dutch planning law has no connection with the use of renewable energies.
On the other hand, it does have a strict regulation for energy efficiency of buildings. This regulation has a firm relation with planning law. The provisions for the energy efficiency of buildings, however, are restricted to new buildings. Local authorities are not allowed to impose more strict levels concerning energy performance in a local bye law. It is not allowed for them to use a bye law to deviate from the level that has been set nationally in the Building Decree. Nor can private law agreements with developers be used to enforce new buildings that are more energy efficient than the Building Decree.
Certainly, municipalities can use subsidies to tempt property developers to build houses that are more energy efficient than the Building Decree requires.
The provisions for energy efficiency do not extend to, for instance, the millions of existing houses. Some members in parliament see this as a major problem. In order to meet the goals for the reduction of carbon, some legislators in parliament propose regulations for energy efficiency of existing buildings. So far, no political majority in parliament can be found for this idea. And even if there would be a political majority, the legal problem of ‘acquired rights’ still exists. Regarding existing buildings, the legal question in The Netherlands at stake is: to what extent can owners of existing buildings be forced to take measures to improve the energy efficiency of their buildings, without financial contributions from government? Up till now owners of existing buildings are tempted by subsidies to improve the energy efficiency.
Fred Hobma, LL.M, Ph.D. is associate professor of Planning Law at Delft University of Technology, Faculty of Architecture, Department of Real Estate & Housing, Delft, The Netherlands.F.A.M.Hobma@TUDelft.nl.
1 Advies Taskforce WKO (Advice Taskforce underground heat and cold storage), Groen licht voor Bodemenergie (Green light for Energy from the Soil), The Hague, March 23, 2009.
2 The authoritative book ‘Hoofdlijnen ruimtelijk bestuursrecht’ (Outlines of Planning Law) by Van Buuren, De Gier, Nijmeijer and Robbe (Kluwer, Deventer, 2009, p. 210) explains that the Building Decree is meant to be exhaustive in the field of building technology requirements.
3 See J.J. Hoekstra and G.A. van der Veen, Kwaliteits- en bindingseisen bij nieuwbouw, wat mag wel en wat niet? (Quality requirements and requirements of social and economic ties in case of new developments; what is allowed and what is not?), Tijdschrift voor Bouwrecht (Construction Law Journal), May 2008.
4 Although it is forbidden, it is reported that municipalities on a regular basis do conclude agreements with property developers in which an energy performance is set that is more strictly than the Building Decree. See R. Fieken, Cobouw, January 11, 2007. From a legal viewpoint, such agreements are void.
5 Conflicts with local authorities do not relate to wind parks on sea, because municipalities do not have planning powers on the North Sea. Planning powers of municipalities are restricted to 1 km from the shoreline. The rest lies within the planning powers of the national state government.
6 Wet van 25 september 2008 tot wijziging van de Elektriciteitswet 1998, de Mijnbouwwet en de Gaswet in verband met toepassing van de rijkscoördinatieregeling op energie-infrastructuurprojecten, Staatsblad 2008, 416. (Act of 25 September 2008 for amendment of the 1998 Electricity Act, the Mines Act and the Gas Act in connection with the application of the central government coordination regulation to energy infrastructure projects, Statute Book 2008, 416.)
7 Staatsblad 2009, 76. (Statute Book 2009, 76).
8 Although ‘environment’ is mentioned as a field for technical regulations, until now no specific regulations regarding ‘environment’ have been formulated in the Building Decree.