Tenants and landlords of retail business spaces beware! How will the Environment and Planning Act affect your lease?

The Environment and Planning Act clause

ROZ 2022 provides that provisions and terms in the lease agreement and general conditions, insofar as they do not connect or correspond to the Environment and Planning Act, shall be interpreted in a manner that corresponds as far as possible to the meaning that those provisions or terms had before the Environment and Planning Act entered into force. This explicitly includes that instead of the Buildings Decree 2012, the Environmental Management Activities Decree and the Energy Performance of Buildings Decree as mentioned in the lease and general conditions, the laws and regulations replacing them will apply. These provisions attempt to harmonise (conflicting parts of) the lease agreement and the general conditions with the Environment Act, but already prior to its entry into force.

The Environment and Planning Act entered into force on 1 January 2024 along with four general administrative measures: the Environment Decree (Omgevingsbesluit), the Environmental Activities Decree (Besluit activiteiten leefomgeving), the Environment Buildings Decree (Besluit bouwwerken leefomgeving) and the Environmental Quality Decree (Besluit kwaliteit leefomgeving).  

What has become what?

However, this does not fully clarify what rules have replaced them. This is because, as of 1 January 2024, rules have not only been transposed, but also amended or deleted. This may include rules that previously applied from a national level, which since the advent of the Environment and Planning Act (amended) apply or may apply under the municipal environmental plan.

Example: the energy saving obligation

A first example is the energy saving obligation, which previously applied to all establishments with an annual energy consumption of more than 50,000 Kwh of (not fully renewable and self-generated) electricity or 25,000 m³ of natural gas under the Environmental Activities Decree. A specific sustainability provision for this energy saving obligation was also included in ROZ 2022.

Under the Environment and Planning Act, the energy saving obligation is found in three places. First, the term 'establishment' has been replaced by the broader term 'environmentally harmful activity'. For environmentally burdensome activities 'designated' in the Environmental Activities Decree (these are mainly the heavier environmentally burdensome activities), the same energy-saving obligation applies as before, if the energy-saving obligation has been declared applicable at the time of designation in the Environmental Activities Decree. Secondly, insofar as there is no designated environmentally burdensome activity in the Environmental Activities Decree, the municipality has the option of introducing an energy-saving obligation in the environment plan for other environmentally burdensome activities, which can also be more or less stringent than under the Environmental Activities Decree. The municipality also has the option under the Environmental Activities Decree to tighten the energy-saving obligation therein at the local level with customised rules. Finally, under the Environment Buildings Decree, an energy-saving obligation applies to 'building-related' measures, such as installing solar panels or insulation measures.

Example: the energy label

Another example is the obligation to provide an energy label at the start of the lease. This provision in the Building Decree 2012 has been included unchanged in the Environment Buildings Decree, causing few difficulties. However, a point of attention remains that from the general conditions to ROZ 2022 follows the obligation to provide the energy label on the commencement date of the agreement, while the Environment Buildings Decree appears to mean the moment of entering into the agreement. These two moments can be far apart. Although the risk of enforcement cannot be considered high, it is purer if the landlord already provides the energy label to the tenant at the time of entering into the agreement. The energy label is becoming increasingly important, especially now that retail premises will most likely need to have energy label C or D by 2025.

Example: permit requirement for an environmentally harmful activity in the environmental plan

Under the Environment and Planning Act, the principle of 'decentralised, unless' is adopted. This means that, as a basic principle, rules on the physical living environment must be adopted at the municipal level, unless this power is limited. The municipal environmental plan must include rules on the physical living environment. This includes rules on environmentally harmful activities, insofar as these are not already regulated (exhaustively) at national or provincial level. This is a break with the now defunct Environmental Law (General Provisions) Act, the Environmental Management Act and the Environmental Management Activities Decree. The environmental plan may therefore include a permit obligation for environmentally harmful activities to be designated by the municipality, such as the operation of a catering establishment. Currently, we are not aware of any such licensing obligation, but it cannot be ruled out that it may be included in future environmental plans. As a result, permit requirements may vary from one municipality to another. This is relevant for the allocation of obligations between landlord and tenant in respect of necessary permits, consents and exemptions (see article 4 of the general conditions to ROZ 2022).

ROZ model retail space 2012

The older ROZ model from 2012 does not contain any specific provisions on sustainability or the energy saving obligation (nor did the earlier models, such as from 2008 and 2003). The transition of the rules on the energy label to the Environment Buildings Decree is also irrelevant, since in current more recent leases, the energy label should have already been provided to the tenant. Thereby, the provisions in the Environment Buildings Decree on the energy label are almost identical to the old Energy Performance of Buildings Decree. However, it is advisable for the landlord and tenant to make additional agreements on (possible) sustainability obligations, especially since the Environment and Planning Act came into force. At the municipal level, for instance, stricter sustainability requirements may be imposed on the tenant's operations than was previously the case. Nor can it be ruled out that a minimum energy label obligation will eventually apply, as is currently already the case for office space. It therefore seems inevitable that more tenants and landlords will face sustainability issues. It is therefore of great importance that landlords and tenants consult each other in good time and make appropriate agreements on the matter, which are also well thought through legally.

Future-oriented lease agreements under the Environment and Planning Act

The entry into force of the Environment and Planning Act also affects tenants and landlords of business premises. In ROZ 2022, an attempt was made to harmonise conflicting provisions and concepts with the Environment and Planning Act with a short transitional provision in anticipation of the Environment and Planning Act coming into force. However, it is questionable to what extent this is possible. It is unclear whether, in the future – if a much stricter energy saving obligation applies at the municipal level – it will be possible to fall back on the provisions of the lease that refer to the less stringent energy saving obligation in the Environmental Management Activities Decree. Also, otherwise stricter or additional sustainability requirements in the near future cannot be ruled out. It is therefore advisable for all landlords and tenants of business premises to make clear forward-looking agreements on this, taking into account the systematics of the Environment Act. It is therefore to be hoped that the ROZ will soon publish updated model agreements with relatively simple changes.

Therefore, if you are about to rent or lease or already rent or lease business premises, good legal advice on this subject is necessary. For more information or advice on this subject, please contact Anton van den Heuvel (+31651189793 or a.vandenheuvel@ploum.nl). Our tenancy law specialists will be happy to advise on this, together with our colleagues of our Administrative law department.