Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

location near a sensitive area, such as Natura 2000 areas (see a, b or c of point 1 of Part A of the
Annex of the Besluit MER), and activities that are situated near a restricted sensitive object
pursuant to the Besluit externe veiligheid inrichtingen (Bevi). In the Barmm-notification the
company has to define and underpin how she will fulfil the environmental regulations on soil, air,
light, noise and external security. The Minister will rate this notification. The submission of the
notification pursuant to the Barmm is step four in the roadmap given by the Minister.
The mining activities that do not fall under the Wabo are regulated by (Article 40 of) the Mining Act.
In practice this mostly counts for the exploration activities. Here, the mining activities are also
covered by a permit (here the mining environmental permit), unless (again) they are mentioned in
the general rules of the Barmm. 157 Hence, the same categories are applicable for the Mining Act as
for the Wabo. 158
In submitting an application for an integrated environmental permit for the establishment of the
drilling site (ex. Art. 2.1(1)(e) Wabo), the company will also ask the municipality in question for a
building permit (ex. Art. 2.1(1)(a) Wabo) and a permit to change the applicable zoning plan (ex. Art.
2.1(1)(c) Wabo). When an application for a mining establishment is in conflict with the zoning plan
(which it will always be since no municipality has yet anticipated on shale gas activities in their
zoning plans), the application will automatically also include a request to derogate from the zoning
plan (Art. 2.6 Wabo). This derogation, if granted, will be covered by the integrated environmental
permit. Article 2.12 sets out the assessment framework. The activity must not be in conflict with
proper spatial planning and the decision must be well substantiated.
The Minister of Economic Affairs is, according to Art. 2.4(3) Wabo in conjunction with Art. 3.3(4)
Bor, the competent authority for deciding on a permit for an establishment that is substantially a
mining work (a) and mining works that are not establishments (b). Pursuant to Art. 6.9 Bor, when
the application concerns an establishment that is also a mining work but on which Art. 3.3 (4)(a)
Bor does not apply, the integrated environmental permit will only be granted if the Minister of
Economic Affairs has declared that he has no objection (verklaring van geen bedenkingen). This
declaration can only be refused for the protection of the environment. This declaration only relates
to the part concerning the mining activities. The Minister of Economic Affairs will also be the
competent authority to decide on the notification pursuant to the Barmm (Article 7 Barmm).
4.5 Spatial planning (Wro)
The Wet ruimtelijke ordening (Spatial Planning Act), also called the Wro, regulates the spatial
planning of the government, the provinces and the municipalities. In the Netherlands, the space is
scarce. Therefore, it is important to divide the space available in an adequate manner. Within
spatial planning, the interests of different parties and different spatial claims are weighed. In the
(spatial) structure vision the government, provinces and municipalities describe what kind of
developments they expect in the field of spatial planning. They show how those developments will
take place or carried out. In the zoning plan, the municipalities determine where and what someone
can build. Also the size of buildings and the areas which may be used are designated. In the near
future the government wants to replace the Spatial Planning Act and various other laws for one
Environmental and Planning Act (the Omgevingswet). It is expected that this Act will make the
decision-making on spatial projects quicker and easier.
Aspects of spatial planning are not part of the assessment of the exploration and extraction
licenses under the Mining Act. At the time of drafting the Mining Act this was not considered
157
Article 40(2) Mining Act in conjunction with Article 4 Barmm.
158
There are also general rules of the Barmm for specific mining installations which are under a permit obligation. Here,
the conditions of a permit are replaced by general rules (Article 5). While the cases under article 4 are intended to replace
the obligation to have a permit, the cases under article 5 are intended to replace the conditions attached to the permit.
40