How to expedite residential construction NOW without STOER

Residential construction in the Netherlands is under major pressure. The current target is to build 100,000 homes a year, but in practice, many projects get bogged down in a quagmire of long and complex permitting and other procedures. The STOER Advisory Group – with 'STOER' standing for Schrappen Tegenstrijdige en Overbodige Eisen en Regelgeving ('scrapping contradictory and unnecessary requirements and regulations') – recently published a draft final report (in Dutch) with proposals to expedite these procedures and reduce the regulatory burden. In addition, the government has introduced the 'Construction Incentive' (Realisatiestimulans) to help speed up residential construction. Municipalities receive a contribution of EUR 7,000 per affordable home for which construction has started. Many of the STOER Advisory Group's proposals will require – unfortunately – legislative amendments. In this blog, we discuss how developers, municipalities and their advisers can already use the current frameworks to expedite permitting procedures for redevelopment and residential construction projects. In addition, we respond to STOER's draft final report and present some additional recommendations, which have been submitted in a consultation response. 

The urgency: why the need to speed up permitting procedures?

The Netherlands has a major housing shortage, currently topping more than 400,000 homes. The shortage is impacting broad groups in society, from first-time buyers who are key workers to vulnerable target groups. Many projects get bogged down in long and complex permitting procedures, long objection and appeal procedures, and an accumulation of rules. Every month of delay not only results in higher costs for developers and municipalities, but more importantly, means that thousands of people have to wait longer for a home. Expediting the process is therefore essential if we are to meet the construction target.

STOER advice: recommendations for expedition

The STOER Advisory Group has published a draft final report with recommendations for expedition, commissioned by the Ministry of Housing and Spatial Planning. In summary, the report recommends simplifying technical building requirements (amending the Environmental Buildings Decree (Besluit bouwwerken leefomgeving, or EBD), formerly the Buildings Decree 2012 (Bouwbesluit 2012)), limiting the investigation burden, standardising procedures, stimulating decentralised solutions and increasing the court fees to discourage unnecessary appeals. It also calls for the reintroduction of the lex silencio positivo (permit by operation of law if the decision deadline is exceeded) and consistent prioritisation of objection and appeal proceedings for residential construction. While many of these proposals are not yet enshrined in legislation, they do offer inspiration for municipalities and developers to find ways to expedite matters within the current frameworks.

What can already be done within the current statutory frameworks?

There are various tools currently available that may be used to speed up permitting procedures. 

• Requesting application of the UOV: procedural expedition can be achieved by requesting application of the uniform public preparation procedure (uniforme openbare voorbereidingsprocedure, or UOV). This is also known as the 'extensive' procedure. Although the UOV has a longer decision time limit for adopting an environmental permit than the regular procedure (26 weeks instead of 8 weeks), in practice it is usually the quicker way to obtain an irrevocable environmental permit. This is because it has only an opinion phase and no objection proceedings. Appeals can be lodged with the administrative court immediately after the environmental permit has been adopted. Moreover, the civil servants already involved in the project are responsible for responding to opinions, which can save time compared with objection proceedings before an independent objection committee. Increased control of timelines, familiarity with the file and the lack of a hearing all foster this efficiency. In addition, the opinion procedure can serve as a final consultation opportunity in the (usually mandatory) participation procedure. In other words, provided that it is properly integrated into the planning process, the UOV can speed up progress towards an irrevocable environmental permit, especially in complex or sensitive projects with many interests at stake. The regular procedure will be the preferred route in simple, less contentious applications (due to the shorter decision time limit).
  
• Coordination: the coordination scheme under the General Administrative Law Act (Algemene wet bestuursrecht) also provides opportunities for procedural expedition. The scheme entails that decisions necessary for a particular project are jointly prepared and adopted under the coordination of the municipality and are covered by the same (simultaneous) legal protection. Expedition can therefore primarily be achieved in the legal protection phase, as this phase is also streamlined. A key benefit here is that mutually correlated decisions cannot be called into question by stakeholders at different successive stages. For example, simultaneous appeals can be lodged against the amendment of the physical environment plan, the flora and fauna environmental permit (activity) and the environmental and building permits with the Council of State's Administrative Jurisdiction Division ("Division") as the one and only body. If one of the decisions can be appealed to the Division in the first and only instance, this automatically applies to all decisions in question (including, for example, in respect of a proposed amendment to the physical environment plan).
• Project decision: project decisions allow the national government and provinces to facilitate very large projects, such as large-scale area developments, on the initiator's request. These decisions combine several approvals into one integrated decision-making process, while at the same time amending the physical environment plan. In addition, project decisions can serve as an environmental permit for the project's execution, meaning that they can contain all approvals for a larger project. This can speed up the process considerably. One particularly beneficial aspect is the application of an expedited legal protection procedure, under which project decisions can only be submitted to the Division for assessment. Moreover, no additional grounds can be presented after the end of the appeal period and the Division must render its decision within six months of receiving the statement of response (which period can be extended once by three months). However, project decisions do take up a lot of time in the preparation phase, which means that this route will only be efficient for large or very large projects. 
• Exclusion of mandatory participation: the Environment and Planning Act (Omgevingswet) requires participation in some cases, for example in respect of an environmental permit for an environmental out-of-plan activity (buitenplanse omgevingsactiviteit). Municipalities decide whether participation is mandatory in a particular project. Accordingly, they can also choose to explicitly exclude certain project categories, such as regular housing projects, from the participation requirement. This can considerably speed up the permitting process, as the application phase would not be delayed by the need to complete a participation process. However, one benefit of participation is that it can highlight aspects of the project that may encounter resistance. These can then be addressed in the environmental permit application (possibly reducing the number of objections).   
• No inclusion of environmental permit requirement or environmental building permit requirement in the physical environment plan or rules for allowing minor derogations: the Environment and Planning Act's entry into force has split up the environmental building permit, specifically into a permit requirement for the technical building activity (EBD) and a possible permit requirement for the spatial building activity in the physical environment plan (environmental plan activity). Municipalities can therefore greatly influence whether a permit requirement applies under the physical environment plan for residential construction and the scope of that requirement (determining the submission requirements and the assessment framework). It is conceivable that for certain (standardised) homes, municipalities might find a notification requirement sufficient if the project meets certain (spatial) requirements (and directly covers these in the physical environment plan), rendering subsequent permitting under the physical environment plan unnecessary. Municipalities can also choose to introduce a limited environmental permit requirement for homes in certain cases, such as the formerly applicable rules for allowing minor derogations (which have lapsed). Given the entry into force of the Quality Assurance (Building Sector) Act (Wet kwaliteitsborging), for example, private quality assurance applies to ground level homes and no permit requirement applies to the technical building activity. Using the options explicitly envisaged by the environment and planning legislature can also reduce or limit the decentralised permit requirements. This can help speed up residential construction. 
  
  

In addition, there are various strategies that can be followed to shorten the processing times in permitting procedures and legal protection procedures. For example, by relying on a failure to meet the decision time limit, objectors could lodge a direct appeal or ask the court for expedited proceedings. The Division stated recently (in Dutch) that it is currently prioritising residential construction cases. In the same spirit, district courts could also prioritise appeals against environmental permits for residential construction.

Other best practices 

In addition to statutory instruments available, best practices can help expedite residential construction. These include:

• Environment and planning/stakeholder management: involving all relevant stakeholders (municipality, developer, advisers, utility companies, local residents, etc.) at an early stage avoids surprises and delays later on. Identifying bottlenecks and discussing possible solutions together early on can streamline procedures and increase support, preventing objection proceedings and other actions. 
• Prior consultations with the competent authority: consulting the competent authority before submitting the environmental permit application can help identify and resolve possible objections, bottlenecks, additional investigation requirements and other matters in a timely manner. This can prevent rejection or delay of applications later on in the process (due to repeated requests to supplement the application).
  
• Smart contracting: contractual arrangements in anterior agreements can also help expedite permitting procedures. Clear and binding procedural and cooperation arrangements could be made about, for example, regular consultations, administrative prioritisation, provision of documents, submission of responses, and timely decision making. 
• Starting work with a usable environmental permit through insurance: in most cases, objection or appeal proceedings do not preclude the use of the environmental permit (unless the preliminary relief judge has suspended it). It may be worthwhile to consider starting the work, based on a legal opinion, before the environmental permit has become irrevocable. It is increasingly common for initiators to take out insurance against the possible risks that proceedings may entail for their projects. Any financing conditions and/or civil law arrangements with the public authorities involved may also be worth exploring. 

Future expedition possibilities: Enhanced Governance Powers (Public Housing) Act

The Enhanced Governance Powers (Public Housing) Act (Wet versterking regie volkshuisvesting), which is set to enter into force in 2026, will provide additional tools to speed up residential construction. The Act offers various procedural ways to expedite housing projects, for example by limiting appeal options to one instance and requiring expedited examination by the administrative court. In addition, the national government, provinces and municipalities are given greater freedom to steer residential construction programmes and resolve bottlenecks more quickly, for example through instruction rules and by designating sites. To reduce the investigation burden, the 'Ladder for Sustainable Urbanisation' (Ladder voor duurzame verstedelijking) has also been scrapped. The express safeguarding of affordability targets in residential construction will speed up and simplify the programming of social housing and affordable owner-occupied and rented homes. It will also be possible to temporarily designate categories of projects to be subject to the expedited procedure, by obtaining a decision from the Division within six months and limiting the grounds for appeal. The Act is consistent with STOER's recommendations and provides a solid statutory basis for further expedition. The desired expedition of residential construction could be further ensured by incorporating the STOER Advisory Group's other recommendations in the adoption process of the Enhanced Governance Powers (Public Housing) Act. This requires political commitment, which is not a given now that the government has fallen.  

Conclusion: from advice to action!

The delay in permitting procedures is a persistent problem. Together, developers and municipalities can save time by making smart use of current (and future) tools and obtaining advice. In that context, the STOER Advisory Group's draft final report provides a valuable agenda for further improvement and deregulation. The challenge now is to make optimal use of the tools already available and continue to innovate wherever possible to stay on track with the housing target. Developers and municipalities have various opportunities to work together on faster, cheaper and qualitatively responsible residential construction. These parties as well as the environment and planning legislature have a role to play in moving things forward. Who will rise to the challenge?