In a ruling of 21 September 2023, the Council for Permit Disputes (RvVb) has put a stop to the so-calledde factonitrogen exemption for construction projects.
This case concerned a railway infrastructure project, where the applicant did not take into account the nitrogen impact associated with the construction activities. The RvVb ruled that the nitrogen impact of the construction phase must also be investigated.
To assess this measure, the RvVb examines whether the nitrogen impact arising from the activities during the construction phase should be evaluated in the context of an appropriate assessment and a stricter nature test. The RvVb analyses the wording of Article 36ter of the Nature Decree, in conjunction with Article 2, 30° of the Nature Decree (the appropriate assessment) and Article 26bis of the Nature Decree (the stricter nature test). The RvVb concludes that for both assessments, the investigation must extend to all consequences that the permit-requiring activity may cause, including potential negative effects during the construction phase of the requested project.
This ruling aligns with a negative opinion that the ANB issued earlier this year in a permit file for a subdivision of twelve plots in Koksijde. The ANB then ruled that there was insufficient information available regarding the nitrogen emissions linked to the construction and operation of the project.
Pending the approval of the Nitrogen Decree, it remains necessary to carry out a preliminary assessment for both the construction phase and the operational phase of any new building or infrastructure project and, if necessary, to make an appropriate assessment.