Marinda de Smidt and Gijs van Midden wrote an article in NtEr on internal netting with nitrogen emissions

Internal netting is a method used when assessing the nature effects of projects, such as the expansion of a farm or the construction of a road. This assessment is required by the European Habitats Directive. With internal netting, the nitrogen deposition of the existing situation is compared with the nitrogen deposition in the new situation. Until recently, it was common practice to use internal balancing as early as the first phase of the assessment to determine whether a nature permit was necessary. If, on balance, there was no increase in impacts, the project did not have to be investigated further.

With the Division's rulings, this is no longer possible. The preliminary assessment may only assess the consequences of a project in isolation. This means that the effects of any mitigation measures may not be considered, nor may a comparison be made with the effects attributable to a previously permitted situation. This is still allowed as a mitigation measure in the second phase of the assessment. An important condition is that the nature benefits are actually established and that the 'gain' from internal balancing is not necessary for the conservation or restoration of nature values (the 'additionality requirement'). The initiator will have to prove that this is already sufficiently secured by nature restoration measures by the government.

This new line will have major consequences for companies that want to change or expand their operations or have already done so recently (from January 1, 2020) with the application of internal netting. The latter group will still have to apply for a nature permit, with all the delays and uncertainties that this entails. In the absence of an adequate nature restoration policy by the government, the additionality requirement will be the biggest stumbling block in practice.

In the article, Marinda and Gijs discuss the reasons why the Division arrived at this change of course. They discuss the frameworks of the Habitats Directive, recent developments in European case law and the interpretation of this case law by the Division. They also discuss the consequences for practice and the possibilities for regaining scope for permit granting.