ABSTRACT

This chapter analyses how the environmental utilisation space concept is implemented in the upcoming Dutch Environment and Planning Act and to what extent this concept contributes to the goal of sustainable development. It first studies the origins and application of the environmental utilisation space concept in Dutch environmental law and its relationship with sustainable development and the ecosystem approach. The chapter continues with an analysis of the implementation of this concept by the Dutch legislator in the Crisis and Recovery Act of 2010 and the future Environment and Planning Act, with an emphasis on the role of municipalities in managing environmental utilisation space in environmental plans and the implementation of a programmatic approach. The chapter finishes with a summary of the obstacles and incentives relevant when implementing the environmental utilisation space concept in the future Environment and Planning Act.

INTRODUCTION

The current legal framework in the Netherlands is considered insufficient to provide the government with the instruments needed to actively work towards a sustainable society while allowing for economic development. One of the main reasons is the lack of an integral and coherent approach for regulating the physical environment that people live in. Environmental principles, standards and values are spread across many different legislative acts and provisions focus either on a particular subject or address one particular environmental issue. The Dutch legislator therefore adopted the Environment and Planning Act (EPA) – which is anticipated to come into force in 2021 – in which environmental, spatial planning and nature conservation acts are integrated into one act. The EPA incorporates existing legal instruments, and adds new elements, striving towards a sustainable society. It also aims to provide more effective and efficient tools to implement EU environmental law in the Dutch legal order.

One of the guiding concepts for the EPA is the (environmental) utilisation space concept, which functions as a general notion for the legislator as well as the public administration when designing environmental legislation and policies. Utilisation space is defined in the Explanatory Memorandum of the EPA as the ‘the legal leeway that exists in a specific area to allow for the realisation of (economic) activities’. According to the legislator, it has a slightly broader meaning than the term environmental utilisation space, which refers to the legal leeway that exists only in relation to the existing legal requirements to protect the environment.