Compensation belongs in your stakeholder plan, not in the aftermath

Handling damage claims is not the legal aftermath of a project. It is part of stakeholder and environmental management, and it belongs on the table before the first closure takes effect.

That sounds obvious, but this summer showed that it is not. On 25 July the Twente canals closed to commercial shipping. Water levels threatened to drop too far, and Rijkswaterstaat gave priority to protecting banks, flood defences, soil and nature. For more than a month, vessels could not reach Almelo, Hengelo or Enschede. Companies that normally receive their raw materials by water switched to road haulage or to terminals outside the region. According to the Dutch Association of Inland Ports (NVB), the ports along the Twente canals contribute roughly EUR 630 million a year to the economy directly and indirectly, and support around 6,800 regional jobs. Twente Board estimated direct damage in the order of a million euros a day.

In early August the Ministry of Infrastructure and Water Management announced that there would be no compensation scheme. According to Minister Karremans, low water levels fall within normal business risk, and the government prefers to invest in making the Netherlands more resilient to weather extremes than in reimbursing individual losses.

There is a lot to be said for that on the merits. But the message came after damage had already been accumulating for two weeks, and it did not answer the question businesses and their advisers were actually asking: if there is no dedicated scheme, does the regular route of statutory damage compensation remain open? That answer never came, and on 28 August the NVB asked the ministry to treat claims sympathetically after all.

Where the line actually runs

Dutch nadeelcompensatie covers damage caused by lawful government action. Since 1 January 2024 the core of that regime sits in Title 4.5 of the General Administrative Law Act, supplemented for the physical environment by Chapter 15 of the Environment and Planning Act. The test: damage that exceeds normal societal risk or normal business risk, and that affects the claimant disproportionately compared with others.

This is not legal hair-splitting, because two kinds of cause run together in this case. Drought is a natural phenomenon, not a government act, and nothing can be recovered on that basis alone. But closing the Twente canals was very much a decision by the waterway authority. Rijkswaterstaat allocated scarce water and placed bank stability and nature above shipping. That is a defensible choice, but it is a choice.

The counter-argument is equally strong and deserves to be stated honestly: without that decision, the canal would probably have become unnavigable anyway. Most of the damage would then have occurred regardless, and the causal link that compensation law requires would be missing. That is where the real legal debate sits, and that is exactly what a business owner in Hengelo would have wanted to hear in mid-August. Instead they received a message that appeared to close off the entire route.

Thresholds nobody knows, and they differ everywhere

The second problem is that almost nobody outside the profession knows which thresholds apply. Under its 2024 compensation policy rule, Rijkswaterstaat applies a threshold of 2 per cent of average annual turnover for lost revenue, and 2 per cent of average annual costs where costs increase. For a fall in property value the threshold is 4 per cent; for private individuals there is a EUR 500 de minimis floor. Straightforward applications are decided within eight weeks; where an independent advisory committee is involved, it takes longer.

At municipal level the picture is very different. A survey by Binnenlands Bestuur found that only a small share of municipalities had adopted a formal compensation scheme at all, and that the differences between those schemes are large. Amersfoort, Breda, Eindhoven and The Hague worked with a 15 per cent turnover-loss threshold, Amsterdam with 8 per cent, while other municipalities chose deduction percentages of 10 to 30 per cent instead of a threshold. The Administrative Jurisdiction Division has accepted linking the test to turnover in principle, but has also made clear that a high generic threshold is not automatic: authorities must substantiate case by case why that threshold is justified in that situation.

For a business owner, this means that whether their losses are reimbursed depends substantially on who is digging up the street. That is explicable to a lawyer. It is not explicable to a baker on a closed street.

The legislator is already moving the line

Anyone who thinks this is a peripheral issue should look at the draft Environment and Planning Act Amendment Bill, which was open for internet consultation from 8 April to 8 May 2026. It adds two new causes of damage to Section 15.1 of the Act: noise production ceilings, and decisions restricting or prohibiting the use of waterway infrastructure or roads.

That second item is precisely the closure decision. In other words, the legislator itself recognises that a decision to close a waterway or a road can be an independent cause of damage requiring an explicit regime. The same bill also widens the expropriation grounds in Article 11.6, among other things for the maintenance and improvement of existing roads, waterways, railways and ports. The direction is clear: compensation law is being adjusted for a country whose main business is renewing what already exists.

And that renewal will not produce less disruption in the years ahead. Infrasite reported in late August that the high-speed line between Hoofddorp and Rotterdam will be out of service for more than three and a half months in 2028 for viaduct repairs, and that the province of South Holland is tackling eight movable bridges around Alphen aan den Rijn in a single contract worth EUR 28.5 million. Bundling works is sensible, but it also concentrates the disruption. Whoever takes such decisions knows years in advance which businesses will bear the cost.

Our position

The reflex to push compensation to the end of the process is understandable. Raising the subject early creates expectations, costs money and invites claims. There is also a genuine argument that disruption should not become free: if every dip in turnover is reimbursed, the incentive to think along about smart phasing disappears, and so does the recognition that a country renewing its infrastructure inevitably produces nuisance.

That argument holds, but it argues for clarity, not for silence. The lesson of this summer is not that too little was paid out. The lesson is that people spent weeks uncertain about whether compensation was possible at all, and that the answer eventually arrived through a press release rather than through the project.

In practice that means five things. For every decision that causes meaningful disruption, include a compensation paragraph stating which desk handles claims, which threshold applies and within what period a decision will be taken. Distinguish between causes that are and are not attributable to the authority, and explain that distinction in plain language. Arrange advance payments for businesses for which an eight-week decision period is already too long. Record the disruption during execution, so that a claimant does not have to prove after the fact what the authority already knew. And discuss the compensation arrangement at the stakeholder table before construction starts, not once objections are filed.

None of this costs more than the institutional damage done when a region concludes that nobody is listening. At the Twente canals, the Eefde lock partially reopened on 29 August, with five lockages a day against the usual 35 to 40. The waterway is recovering. Trust takes longer.

Compensation belongs in your stakeholder plan, not in the aftermath

Where the line actually runs

Thresholds nobody knows, and they differ everywhere

The legislator is already moving the line

Our position

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