In a judgment dated 15 March 2017 (ECLI:NL:RVS:2017:694), the Administrative Law Division of the Council of State gave an interesting decision concerning the sustainable urbanisation ladder and the requirements stipulated for the need for a development. Several building supply stores and the owner of a nearby industrial park argued in this case that the construction of a Hornbach constitutes new urban development and that the assessment framework of the Ladder had wrongly not been satisfied. One of the arguments presented was that the previous planning regime for the plot did not, by law, allow a building supply store. The zoning plan previously in force did, however, contain the power to derogate within the plan, which could be used to allow a building supply store.
Previous case law
This is not the first time that the Division was faced with the question of whether, when assessing whether new urban development is involved, account must be taken of the possibilities of exemption for a building plan falling within the zoning plan. In a judgment dated 20 April 2016 (ECLI:NL:RVS:2016:1075), the Division used the following starting point in relation to the ‘Ierse Pond’ zoning plan, which provides for the establishment of maximum 3,000 m2 in retail on an undeveloped plot zoned for business but which does not increase the building possibilities:
‘A zoning plan that, compared to the previous zoning plan in force, does not enable expansion of the maximum permitted surface area of business development but only a change in function in terms of planning does not, in principle, provide for new urban development as referred to in section 3.1.6 (2) of the Spatial Planning Decree, unless the change of function in terms of planning is of such a nature and scope that there is nonetheless a situation of new urban development.’
In this case, the Division found that there was no situation of a new claim on space (i.e. no case of an increase in the number of square metres of developed area) and also no change in function such that new urban development was involved because the previous plan already contained the possibility to derogate for the benefit of retail.
The appellants’ argument
In the judgment dated 15 March 2017, in addition to the Ierse Pond case the appellants also argued that the power to derogate (i) is non-binding because, in contravention of section 3.6 (1), opening lines and c, of the Spatial Planning Decree, it provided for a fundamental change in the use ‘Industrial Park’. In addition, (ii) the particular power to derogate was never applied and (iii) the prospective project did not satisfy the conditions under which application of this power could occur. It was also argued that (iv) the zoning plan now provided for more generous building permissions and use possibilities than provided for in the power to derogate contained in the previous zoning plan.
Assessment of the power to derogate
The contested zoning plan provides for a Hornbach building supply store and garden centre, including the related industries of DIY, which includes kitchens and sanitary ware, and the outdoor sale of garden products and garden plants. The Division found that it had rightly been argued that the previous zoning plan had not provided by law for a building supply store and garden centre. The Division found, however, that a building supply store and garden centre could be provided for if the power to derogate for a building plan within the zoning plan were applied. If this possibility to derogate would have been applied, the Ladder need not have been followed. In view of this, the Division ruled that the contested zoning plan did not provide for a change in function with respect to what had already been provided for in the previous plan. The Division also did not agree with the argument that with the prospective drive-through, the zoning plan provided for broader possibilities of use than afforded by the power to derogate contained in the previous plan. The Division’s reasoning on this point was as follows: aside from whether the same drive-through could not also have been realised by applying the power to derogate contained in the previous zoning plan, the prospective drive through could be regarded as a function related to the building supply store and/or garden centre.
Binding nature (i)
As regards the argument that the exemption clause from the previous zoning plan should not be applied because it provided for a fundamental change to the zoning, the Division considered that – aside from whether this assertion was correct – the exemption clause in the previous zoning plan was irrevocable. Unlike in proceedings in which an integrated environmental permit is being granted with application of the particular possibility to derogate, in these proceedings the lawfulness of the particular clause could not be addressed by assessing a provision’s compatibility with a superordinate provision. For this reason, in the context of these proceedings the Division assumed the lawfulness of the particular power to derogate contained in the previous zoning plan.
Never applied (ii)
The fact that the particular power to derogate contained in the previous zoning plan had never been applied was not a problem, according to the Division. This does not mean that Hornbach’s zoning plan provides for new urban development. The assessment framework entailed by the Ladder does not, after all, play any role in the application of a power to derogate for a building plan falling within a zoning plan, since – if this provides for new urban development – this assessment framework was required to have been used already in the adoption of the parent plan. As regards the assertion that testing against the Ladder was omitted in adoption of the previous zoning plan, the Division considered that as was already considered above, in the current proceedings the lawfulness of the previous plan had to be assumed.
Conditions not satisfied (iii)
The argument that the particular project did not satisfy the conditions under which the exemption clause contained in the previous zoning plan could be applied also fails. Also with reference to the considerations in (i) and (ii), the Division considered that this fact was not relevant in the current proceedings. The Division stated that what was relevant was that under the previous zoning plan, under certain conditions a building supply store and garden centre of identical size could likewise be provided for.
Expansion of planning permissions (iv)
As far as the argument is concerned that the planning permissions were increased outside the structural area with respect to the previous zoning plan, the Division considered first of all that the planning permissions outside the structural area have been capped for the hospitality industry at 75 m2. Garden houses and carports may only be displayed for show and are therefore not intended to remain on site permanently. For the rest, the Division did not consider it demonstrated that a representative use of the maximum planning possibilities would entail that more than 3,000 m2 in parking areas for retail vehicles, bicycle parking and (public) utilities would be built outside the structural area. For this reason, this argument is dismissed as well.
No new urban development
Given the foregoing, the Hornbach zoning plan does not, in the Division’s view, constitute new urban development, so that section 3.1.6 (2) of the Spatial Planning Decree does not apply. For this reason, there is no requirement in this context to demonstrate that there is a current need for the Hornbach building supply store. That is relevant because the appellants argued in relation to the needs investigation that was indeed carried out (for the sake of certainty) by the Duiven council that this investigation was defective. The appellants claimed that the report wrongly did not take into account firm planned capacity for the construction of building supply stores at a nearby industrial park in Arnhem. The Division does have to give a substantive opinion on this in the context of the appellants’ argument that the council had – from the perspective of good spatial planning – wrongly failed to demonstrate that there was no need for the planned Hornbach building supply store.
Needs report and feasibility of the plan
In this context, the appellants rely on a judgment dated 6 August 2014 (ECLI:NL:RVS:2014:2929) in which the Division found that in the event section 3.1.6. (2) of the Spatial Planning Decree did not apply, this does not detract from the fact that from the perspective of good spatial planning, a need for the planned development must arise within the planning period of in principle ten years. In addition, there may also be no obstacles otherwise that oppose the realisation of these developments within the planning period.
The appellants also rely here, with reference to various counter-reports, on the fact that Hornbach’s plan results in unacceptable vacancy in the catchment area and in long-term disruption of the retail structure. One of the arguments for this is that the needs report wrongly fails to take account of the concrete initiatives at the nearby industrial park in Arnhem. Permits had already been granted for these at the time the contested zoning plan was adopted.
The council explained in the hearing, however, that aside from the question of whether these permits will become irrevocable, even if it had included these initiatives in its considerations, this would not have prompted it to change its position that the zoning plan will not result in any structural vacancy. Interestingly enough, the Division was satisfied with this. Even though it has been established that Hornbach’s plan, seen in conjunction with the firm planned capacity and the permits granted, will result in substantial oversupply. In my view, this opinion of the Division is at odds with earlier judgments (see for example ABRvS dated 11 March 2015, ECLI:NL:RVS:2015:715) in which the Division found that when providing insight into the current regional needs, account must be taken of the existing supply, which includes the planned capacity.
The (substantial) oversupply is even acknowledged in the needs report. None of this will benefit the appellants, however. The Division evidently found it important in this respect that the appellants’ reliance on this is aimed at protecting their own economic position. In connection with this, the Division stated that as it had already considered (cf. the judgment of 5 June 2013, ECLI:NL:RVS:2013:CA2094), a zoning plan is not aimed at regulating competitive relationships. The council did not have to see the fact that Hornbach’s opening may be at the expense of (the turnover of) building supply stores in the same catchment area and may even result in the closure of one or more building supply stores as cause for it to make it impossible for the Hornbach building supply store and garden centre to open.
According to the Division, the fact that one or more industrial premises for building supply stores may become vacant also does not mean that there is (structural) vacancy that is unacceptable from the perspective of good spatial planning. The need for the envisioned development must be weighed against the existing supply, with a view to preventing structural retail vacancy. It must be made clear that the plan will not result in vacancy such that this will cause a situation in the catchment area that is unacceptable from the perspective of good spatial planning. The effects of a building supply store were made clear by the owner of the industrial park in Arnhem. However, this was disregarded with the somewhat simple reasoning that any vacancy at either the particular industrial park in Arnhem or the industrial locations in Duiven will not be structural on account of the generous industrial zoning that applies there. The Division also considered this plausible with regard to the vacancy at the industrial park where the Hornbach store is to be built, on account of the presence at that location of a number of retailers that attract the public, such as IKEA and Mediamarkt, which makes this industrial park an appealing business location.
The judgment of 15 March 2017 gives somewhat more clarification on the application of the Ladder. It also provides insight into how the Division substantively tests needs in the context of the feasibility of the plan. As far as I am concerned, the Division was too flexible in assuming this feasibility.
If you would like to know more about the ladder for sustainable urbanisation or the feasibility of zoning plans, contact Jasper Molenaar.