March 27, 2023

Volume XIII, Number 86


March 24, 2023

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New Wind Parks in the Netherlands Frustrated by Court Ruling

On 30 June 2021, the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) issued its judgment in a case regarding the provincial executive (Gedeputeerde Staten) of Groningen’s permit issuance for the expansion of a wind park close to Delfzijl. According to the Administrative Jurisdiction Division, the general wind turbine standards currently used to license the realization of the majority of wind farms do not comply with European rules. The current Dutch standards are included in the Activities Decree (Activiteitenbesluit) and the Environmental Management (Activities) Regulations (Activiteitenregeling).

This judgment is the direct result of the EU Court of Justice’s Nevele judgment (which the appealing parties in the Delftzijl case also referred to). The EU Court ruled in the Nevele case that under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, an environmental assessment (milieubeoordeling) should be carried out in line with the Directive for various wind farm effects (regarding noise, shadow flicker, and safety) prior to issuing permits for placing wind turbines. According to the EU Court, Belgium unlawfully failed to do so, and in the Netherlands, such an environmental assessment was not made for the statutory norms for wind farms.

Pursuant to the judgment of 30 June 2021, the Dutch government will be required to prepare such environmental assessment. In the meantime, the current wind turbine norms cannot be used as a basis to issue permits for wind farms without performing an environmental impact report (milieueffectrapportage), which is time-consuming and means that various projects will be put on hold.

Yet, the ruling does not mean that new permits for wind farms cannot be issued in the meantime. According to the judgment, a city council (raad) can set its own standards in a zoning plan (bestemmingsplan) which applies to a wind farm. As long as these standards are properly substantiated, they can be used for permit issuance. However, such an individual approach for wind farms (instead of a more generic statutory framework) will likely impede the large-scale realization of wind farms where various zoning authorities are involved.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 187

About this Author

Marijn Bodelier, Greenberg Traurig Law Firm, Amsterdam, Real Estate and Environmental Law Attorney
Of Counsel

Marijn Bodelier specializes in public law, real estate and environmental law. Marijn has particular experience in litigation in regulatory and real estate related matters. He is regularly involved in international transactions and innovative projects where public law aspects are a key-element.


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Jan Herfkens Real Estate Greenberg Traurig Law

Jan Herfkens is an associate in the Amsterdam real estate practice of Greenberg Traurig. Jan focuses his practice on real estate, administrative law, and environmental law. Jan holds a LL.M. from Leiden University. Besides his bachelor of Law, Jan studied Middle-Eastern Studies: Arabic, and he worked as a student-assistant for international labor law. Before joining Greenberg Traurig in October 2019, Jan was a trainee of political affairs at the Dutch Embassy in Beirut (Lebanon), and he was a lecturer on “Techniques and Methods of Jurisprudence” at Leiden University. Jan is admitted to the...

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