Dryade has asked the Flemish Agency for Nature and Forests (ANB) to clarify its Practical Guide on Nitrogen Deposition. The request follows a legal issue that emerged in the proceedings concerning the Groenendaal spatial implementation plan (GRUP) near the Brussels Ring Road. Rather than waiting for the same discussion to arise again in future proceedings, we have chosen to engage directly with ANB. Prevention is better than cure: clear guidance can help avoid both legal disputes and uncertainty in future planning procedures.
Image by Kathy
Uncertainty about application to plans
The Practical Guide on Nitrogen Deposition contains practical guidance for assessing the effects of nitrogen deposition on European protected nature areas. The Guide states that, although it is primarily intended for projects subject to permitting requirements, its guidelines may also be applied mutatis mutandis to plans and programmes falling within the scope of Article 36ter, §3 of the Nature Decree.
This raises a legal issue. The PAS Decree contains specific assessment frameworks for certain projects requiring a permit. For mobility-related projects, these include a 1% threshold and, above that threshold, an assessment based on the area-specific downward deposition trend. Under Article 21, §1 of the PAS Decree, that statutory framework applies to environmental permit applications, certain project decisions and equivalent decisions.
Groenendaal proceedings reveal a contradiction
The issue became concrete in the proceedings brought by Dryade before the Council of State against the GRUP for the redesign of the Groenendaal interchange. In the update to the appropriate assessment, the decision-making flowchart in the Practical Guide was expressly followed, including the use of the 1% threshold and the deposition trend tool.
Remarkably, both the Flemish Region and De Werkvennootschap have since confirmed in their pleadings before the Council of State that the statutory PAS assessment framework does not apply to a GRUP. De Werkvennootschap explicitly states that Article 21, §1 defines the scope of Chapter 3 of the PAS Decree and that a regional spatial implementation plan does not fall within that scope. The Flemish Region similarly bases its position on the fact that the PAS Decree applies to environmental permits and equivalent decisions.
This does not mean that the nitrogen impacts of spatial plans need not be assessed. Quite the opposite. A plan that may significantly affect a Special Area of Conservation must be subject to an appropriate assessment under Article 36ter of the Nature Decree. The legal point is more specific: assessment rules that the legislature has expressly laid down for particular types of permits cannot simply be used as the statutory assessment framework for a plan that falls outside the scope of those rules.
Scientific data remain relevant
That distinction matters. Models, current background deposition maps, critical loads and other scientific tools can of course provide useful—and often essential—information for assessing a plan. But using such data is not the same as applying the legal consequences that the PAS Decree attaches to, for example, the 1% threshold or the deposition trend.
For that reason, Dryade is not asking ANB simply to delete the relevant passage from the Practical Guide. Doing so could leave the uncertainty unresolved. Instead, we are asking ANB to state explicitly that the specific assessment frameworks laid down in Chapter 3 of the PAS Decree do not apply to plans and programmes that fall outside the statutory scope of that chapter.
Also important for ANB’s advisory role
This clarification also matters for ANB itself in its role as an advisory authority. In the Groenendaal case, the Agency approved both the appropriate assessment and its subsequent update. The Flemish Region expressly relies on those favourable opinions in the proceedings. Yet the update was prepared using the Practical Guide’s decision-making flowchart and the assessment framework that the Flemish Region and De Werkvennootschap now themselves argue does not apply to a GRUP.
For Dryade, this primarily illustrates why clear guidance is so important. If public authorities, advisory bodies and project promoters work from the same legal starting points, potential problems can be identified and resolved much earlier.
Dialogue first
We have therefore written to Goedele Van der Spiegel, Administrator-General of the Agency for Nature and Forests, asking ANB to clarify the Practical Guide. We also provided the relevant pleadings from the Groenendaal proceedings.
We have deliberately chosen dialogue. Proceedings before the Council of State are intended to resolve a specific legal dispute. But when such a case reveals that general guidance may itself create uncertainty, it is more useful to address that uncertainty for future cases as well.
For nature protection and legal certainty alike, the same principle applies: prevention is better than cure.