Klaas begins his article by considering the core of the judgment. This involves the verification obligation – newly introduced by the Division – to which the municipal council is subject when satisfying the additionality requirement. Klaas also discusses the Division’s chosen interpretation of the plan concept, comparing it with previous Division case law on spatial plans, including the Bergeijk judgment. In this context, he identifies tension within the case law on ‘one and the same project’: where projects are concerned, the entire modified project has to be assessed, yet when it comes to plans, the Division draws a different distinction.
The article goes on to address how the Division’s approach relates to the Union law concept of a plan. Klaas identifies two approaches to interpretation: one based on framework-setting subplans for future activities and the other founded on analogy with the case law on ‘one and the same project’.
Subsequently, Klaas considers the judgment’s practical consequences, pointing out various problem areas for consolidated and thematic plans and subplans. He proposes two types of model planning rules to resolve these problems. The first is a far-reaching variant in which construction and use options that have not been implemented are removed from the zoning plan. The second concerns a ‘no increase’ planning rule, which ensures that the plan itself prohibits any increase in nitrogen deposition, thus avoiding the need for an appropriate assessment at plan level.
Finally, the article looks ahead to the Environment and Planning Act. The central question is how a broader plan assessment, as advocated in the legislative history and the Commission guidelines, relates to the assessment framework tightened by the Division. Further, Klaas considers whether, as part of this broader assessment, the additionality test for the non-municipal party adopting the zoning plan can be placed at a higher level of abstraction.
