Dutch court dismisses exception for the assessment of nitrogen impact in construction projects


Nature reserves in the Netherlands are overloaded with nitrogen, due to nitrogen emissions caused by, among other things, livestock farms and traffic exhaust fumes. In order to protect nature reserves, European nature conservation rules have been strictly enforced in the Netherlands since May 2019, which has caused a halt to many construction projects, including projects in the residential, energy and logistics sectors.

As a result of nature conservation rules, every construction project – as part of the permitting process – needs a nitrogen effects calculation. A project can only go ahead if it has been demonstrated that the project will not adversely affect protected nature areas. The calculation for nitrogen emissions needed to be made for the construction phase (in relation to construction traffic and the usage of rubble crushers and cranes), as well as for the operational phase (due to regular traffic exhaust fumes).

On 1 July 2021, legislators in the Netherlands enacted an exception for the assessment of nitrogen effects in the construction phase. To compensate, the Dutch government announced that it would take several nationwide measures for nature restoration.

However, on 2 November 2022, the highest administrative court in the Netherlands ruled that this exception for the construction phase was unlawful and is no longer applicable. This means that nitrogen calculations for projects – as they existed prior to 1 July 2021 – must again cover the construction and the operational phases, and must be made with the AERIUS calculation programme.

When a calculation shows that a project has the potential to negatively impact a protected nature area, a permit is required under the Nature Conservation Act. These permits, however, are difficult to obtain. An ecological impact assessment may offer a way out, or potential negative impact can sometimes be avoided by utilising more sustainable construction equipment, such as electric construction vehicles.

If you have any questions on the effect of environmental policies on the Dutch construction industry, contact your CMS client partner or local CMS experts: