RvVb nullifies ministerial instruction ‘nitrogen’, what about legal certainty?

More than eighteen months after the infamous ‘nitrogen judgment’ of the Council for Permit Disputes of 25 February 2021, the Council has again rendered an important judgment on the nitrogen issue. By ruling that the mere reference to the Ministerial Instruction of Environment Minister Demir cannot suffice as an adequate justification, the nitrogen policy of the Flemish Government is even more questionable.

First linking back to 2021: after the Council for Permit Disputes, in its ruling of 25 February 2021, had dismissed the Flemish government's entire nitrogen policy (the so-called ‘PAS’, which worked with minimum threshold values), minister Demir came up with a so-called ‘Ministerial Instruction’ on 2 May 2021. For ammonia emissions (NH₃, mainly originating from agriculture), the threshold came to be set at 0% (later in the PAS Concept Paper, it was only raised very slightly to 0.025%), for nitrogen oxides (NOx, mainly originating from industry), a threshold of 1% was set.

The aim of this instruction was clear: to provide clear guidelines for the licensing authorities and for entrepreneurial Flanders in order to guarantee legal certainty and avoid a general construction freeze. The agricultural sector, among others, immediately criticised this (temporary) regulation: it would mainly affect agriculture and would not be sufficiently detailed to provide the necessary legal certainty.

A new ruling by the Council for Permit Disputes was written in the stars and came true on 27 October 2022. The new ‘nitrogen judgment’ concerns the expansion of a grape greenhouse in Overijse. Although the municipality refused the permit, it was granted on appeal by the Flemish Brabant Deputation on 19 August 2021. The Deputation had relied on Minister Demir's ministerial instruction to justify its permit decision.

Eight local residents and Natuurpunt Oost-Vlaanderen appealed to the Council for Permit Disputes against this permit. Their point of view: the Deputation merely relied on the ministerial instruction and failed to assess the significant degradation itself in a concrete manner.

The Council followed this position and ruled: ‘The defendant (Deputation) did not subject the contested decision to an examination based on the concrete facts of the case. (...) It is not sufficient for the Defendant to merely refer to the Ministerial Instruction of 2 May 2021 and test against the condition contained therein regarding the application of common emission-reducing measures. There must still be a sufficient appropriate assessment.’

Although the Ministerial Instruction itself had already indicated that licensing authorities were not meant to just slavishly follow the instruction (it served as a ‘guideline’... quid legal certainty?), it now seems to have become completely dead letter in practice.

Indeed, what is special in this story is the fact that the concrete impact of the grapevine greenhouse concerned NOx (the industrial component), where a 1% threshold applies. With its judgement, the Council now seems to indicate that the distinction between NOx and ammonia (the agricultural component, with a threshold value of 0%) is effectively discriminatory and therefore, from now on, an adequate appropriate assessment will have to be made for all activities.

Incidentally, the judgment was already written in the stars, because in September there was already a similar predecessor concerning VEN areas (‘Flemish Ecological Network’, a selection of the most valuable and sensitive nature areas in Flanders). Then too, the Council was of the opinion that a ‘mechanical’ application of the Ministerial Instruction could not be considered compatible with the nature test under Article 26bis of the Nature Decree (see judgment via this link: https://www.dbrc.be/sites/default/files/2022-09/RVVB.A.2223.0044.pdf).

More than ever, therefore, it is clear that the need for an adequate decree framework is becoming greater and greater. The Concept Note PAS of 23 February 2022, which built further on the distinction made in the Ministerial Instruction, should therefore be fundamentally remembered here.

For now, therefore, we remain more than ever bivouacked in a legal vacuum. Both the agricultural and industrial sectors are in the same boat: will there be an effective licence freeze or can it still be averted? What about the permits granted under the Ministerial Instruction?