Some time has now passed since the minor exemptions list was expanded on 1 November 2014 by means of the Crisis and Recovery Act Decree [Besluit Crisis- en herstelwet] (Bulletin of Acts and Decrees 2014, 333). In a ruling of 22 March 2017 (ECLI:NL:RVS:2017:744), the Administrative Jurisdiction Division of the Council of State confirmed that, in the light of this expansion, it is permitted to combine several elements of this list. For the ruling, I refer to an article by my colleague Jelmer Keur.
From water tower to offices
In a decision of 29 March 2017 (ECLI:NL:RVS:2017:819), the Administrative Jurisdiction Division ruled in line with last week’s decision. In this case, the municipal executive of the Municipality of De Ronde Venen issued a minor exemptions permit for changing a water tower into an office building and an expansion on the first floor at the north and south side. Adding square metres of office space is currently a precarious topic in any municipality or province.
Objections by local residents
Local residents argued that the municipal executive may not deviate from the zoning plan on the basis of both the first and the ninth paragraph of Section 4 annex II of the Environmental Permitting Decree (Bor). According to them, this would be at odds with the system contained in the statutory scheme. What the appellants (naturally) were aiming for is that the minor exemptions scheme cannot be applied leading to the building plan being exclusively permitted on application of Section 2.12 paragraph 1(a) under 2° of the Environmental Permitting (General Provisions) Act (Wabo) (deviation on the basis of reasoned spatial planning substantiation). In that case, pursuant to Section 5.20 Bor, the test must be on the basis of “The Sustainable Urbanisation Ladder” (Section 3.1.6, second paragraph of the Spatial Planning Decree) and provincial legislation. In case of a minor exemptions permit, the sustainable urbanisation ladder does not apply (see for example ECLI:NL:RVS:2015:3845) and there is no test against the Provincial Spatial By-laws of the Province of Utrecht 2013 (PRV).
Combination of elements is permitted
The Division ruled that the municipal executive was authorised to deviate from the zoning plan both on the basis of the first and the ninth paragraph for the expansion of the water tower and the use of the water tower as independent office building, respectively. Reference is made to the Explanatory Memorandum to the Decree to amend the Bor from 1 November 2014 (Bulletin of Acts and Decrees 2014, 333 p. 50-51), where it is stated that various elements of Section 4 of annex II of the Bor can be applied in combination and that it is thus possible to issue an integrated environmental permit for a particular use referred to in Section 4, paragraph nine, of an existing main building and for the construction and the use of an ancillary structure as referred to in Section 4, paragraph one, at the same time. As Section 3.1.6., second paragraph, Spatial Planning Decree and Section 3.5 second paragraph, PRV do not apply to the granting of a minor exemptions permit, what the appellants stated on this issue did not have to be addressed.
Alternatives and balancing of interests
If a minor exemptions permit is granted, reasons must be provided as to why, in view of the surrounding area and the interests of third parties, this is reasonably acceptable from a planning point of view. In this context, the appellants argued that the executive had not attached sufficient weight to their interest in the preservation of the quality of life and the protection of their privacy. To this end, they argued that the stairwell with a building height of 40 metres departs substantially from the maximum building height of 12 metres as allowed by the zoning plan of the area. If the stairwell were to be realised at the east-side of the water tower, this would cause less of a nuisance, so said the appellants. In addition, the appellant also argued that changing the water tower into an independent office building is not financially feasible in view of the surplus of vacant office buildings in the Municipality of De Ronde Venen.
No disproportionate impairment
The Division was of the view that the interests of the local residents were not disproportionately impaired. The height of the anticipated stairwell links in with the height of the already present water tower of 40 metres. In addition, the municipal executive had sufficiently explained that an extra stairwell was necessary in connection with fire regulations. The fact that according to appellants a stairwell at the east-side of the water tower would be less of a nuisance, cannot benefit the appellants. The municipal executive must decide on the basis of the application as had been submitted. As the Division considered previously, in the ruling of 7 November 2012 for example (ECLI:NL:RVS:2012:BY2489), the existence of alternatives can only lead to a denial of planning cooperation if it is clear in advance that by using these alternatives an equivalent result can be reached with substantially fewer drawbacks. The appellants had not made it clear that this was the case here. The argument that there is a surplus of vacant office buildings in the municipality does not lead to the view that the building plan is not financially feasible.
This ruling illustrates once again that the minor exemptions permit is an effective tool for transforming existing buildings. In cases of politically-sensitive applications such as offices and residential accommodation, including student accommodation, this permit is an efficient instrument. The, in practice, difficult check against the Ladder and the rules from the provincial by-laws can be avoided in this way. If you would like more information on the transformation of an existing property and the options offered by the minor exemptions list, please contact Jasper Molenaar.