On January 14, 2026, the Administrative Law Division of the Council of State (“Division”) amended its case law on internal offsetting in zoning plans (ABRvS January 14, 2026, ECLI:NL:RVS:2026:193). This extends the line taken in the Rendac ruling of December 18, 2024, namely that the reference situation may no longer be taken into account when determining whether significant consequences of a project can be ruled out in advance, to plans within the meaning of Article 6(3) of the Habitats Directive. This means that, unlike previously, the reference situation may no longer be taken into account when determining whether significant effects of the spatial development provided for in a zoning plan can be ruled out in advance. Although the ruling focuses on the ‘Pasgeld-West’ zoning plan of the municipality of Rijswijk, it will also be relevant to other (environmental) plans.

The old assessment framework

Articles 2.7 and 2.8 of the Wnb (now: 10.24 Bkl) stipulate that an appropriate assessment must be drawn up if a zoning plan may have significant effects on Natura 2000 areas. A zoning plan can have significant consequences for a Natura 2000 area if the plan provides for spatial development(s) that could have significant consequences compared to the reference situation (the existing and legally permissible situation). If the preliminary assessment shows that significant effects cannot be ruled out in advance, the administrative body must carry out an appropriate assessment. Under the old assessment framework, in order to determine whether significant effects could be ruled out, the competent authority was still allowed to compare the effects of the reference situation with the effects of the proposed spatial development in the preliminary assessment.

The new assessment framework | no more internal offsetting in the preliminary assessment

The change of course by the Division means that the reference situation may no longer be included in the preliminary assessment in the case of a zoning plan, as a result of which internal offsetting no longer has a place in the preliminary assessment. The consequences of the spatial development made possible in the zoning plan must therefore be examined on their own in the preliminary assessment. If this shows that significant consequences cannot be ruled out in advance, an appropriate assessment must be carried out to ensure that the plan will not adversely affect the natural characteristics of the Natura 2000 area.

The change of course means that an appropriate assessment will have to be drawn up more often. In this assessment, internal offsetting with the reference situation may be applied, subject to certain conditions.

Additionality requirement

However, it is important to note that the Division considers that internal offsetting can only be used if the emission allowance or positive effect released as a result of the change or termination of the reference situation is not necessary as a conservation or appropriate measure. In other words, internal offsetting in the appropriate assessment is only possible if the additionality requirement is met. In the case of a zoning plan, the municipal council can justify this by ensuring that there are no indications in publicly available data that the province or the State does not consider the emission space released from the reference situation to be necessary for Natura 2000 areas. This obligation to ascertain does not apply to provinces or the national government, as they have the authority to take conservation and appropriate measures with regard to Natura 2000 areas. Municipalities do not have this authority.

Conclusion

The conclusion is that an appropriate assessment will now be required more often in the planning process and that an additionality test must be carried out for the reference situation (municipalities can do this by complying with the obligation to ascertain).

Finally, the Division considers that the change of course applies directly to ongoing planning procedures. Unlike in the Rendac ruling, the Division does not apply a transition period. In ongoing planning procedures, it is therefore worthwhile to (still) consider whether the plan complies with the new framework for internal offsetting.

This article was written by Jesse Simonis. Our firm advises and assists governments, businesses, and non-profit organizations with spatial and area developments. If you or your organization needs assistance in this area, please contact him or one of the other specialists in our Government and Non-profit team. They can be reached at +31 (0)43 321 6640 or info@paulussen.nl. Appointments can be made on location or at our offices in Maastricht and Heerlen.

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