A positive refusal of an applied for nature permit gives a livestock farmer the same rights as a nature permit that has been granted. This means that the application for a positive refusal is preferable to a personal Aerius calculation.
This is possible according to lawyer Franca Damen are concluded from a statement of the Gelderland court. This was provoked by a partnership in Putten and the Stikstofclaim Foundation, against the province of Gelderland. The province refused to issue a nature permit, because this is not necessary for internal netting. A positive refusal means that although a permit application is refused, this does not mean that the (business) plan may not be implemented.
Since January 1, 2020, a nature permit is only required if there is a project that could have significant consequences for a Natura 2000 area. According to the Council of State there is this is not the case with internal netting. That is why companies can opt for a so-called 'positive refusal' or make their own calculation.
Damen recommends opting for applying for a nature permit and having it positively rejected. This often offers the most benefits. According to the court, the legal consequences of a positive refusal are equal to the legal consequences of a nature permit. The same arguments underlie this. The fact that a positive refusal can be litigated in court also means that a positive refusal can be established 'in law' and that this must be assumed in a later procedure.
The court also briefly discusses the situation in which a company only carries out its own AERIUS calculation for the intended establishment, change and/or expansion. The company then does not apply for a nature permit and therefore does not opt for a positive refusal. According to the court, discussions may arise later.
The Nitrogen Claim Foundation is happy with the new legal certainty that this creates for many companies, but just to be on the safe side, it also wants to appeal to the Council of State.