Interim Ruling Assignment
The Administrative Jurisdiction Division instructed the minister in the interim ruling to better justify whether the offsetting (external saldering) of the nitrogen increase from the road project against a nitrogen reduction due to the closure of several agricultural businesses met the applicable conditions. One of these conditions is the additionality requirement.
Deficiency Not Remedied
The Division concluded that the minister did not sufficiently motivate compliance with the additionality requirement. Therefore, the deficiency in the route decision was not remedied.
Additionality Requirement
The road project negatively affects five Natura 2000 areas around the Utrecht Ring: Veluwe, Binnenveld, Eastern Vechtplassen, Naardermeer, and Nieuwkoopse Plassen & De Haeck. Most of these Natura 2000 areas are overloaded with nitrogen. The minister had to demonstrate that the nitrogen reduction from the closed agricultural businesses was not necessary to prevent imminent deterioration of nature in these areas. Nature conservation law requires continuous assessment of whether measures to reduce nitrogen in these areas remain sufficient or if more or other measures are needed. Therefore, the minister should have based his recovery decision on the most recent information about the state of nature in these areas. This information is found in the nature target analyses and the advice from the Ecological Authority. The minister did not include these analyses and advice in his recovery decision, but he should have. These analyses show that the state of nature in these areas is insufficient. Therefore, the minister cannot now claim that the desired nitrogen reduction can be achieved with only existing measures and that the nitrogen reduction from the closed agricultural businesses is not also necessary.
Minister Has More Than a Duty to Inquire
The minister argued that he could suffice with checking whether the competent provinces consider the nitrogen reduction from these businesses necessary for the Natura 2000 areas (the so-called duty to inquire). The Division disagreed. Unlike a municipal council, a minister has powers to influence the state of nature in Natura 2000 areas.
Additional Compensation
Since the additionality requirement was not met, the minister was not allowed to use external saldering to enable the road project. However, external saldering was not the only option. The Division had already pointed out in the interim ruling that instead of external saldering, the minister could choose extra compensatory measures in the recovery decision to compensate for the loss of nature (quality). The minister did not make use of this option.
Consequence of the Ruling
Since the deficiencies in the route decision were not remedied, the Administrative Jurisdiction Division annulled the 2020 route decision and the amended route decisions from 2022 and 2025. This means the widening of the national roads A12, A27, and A28 as envisioned by the minister with this route decision is off the table.