In a previous contribution I referred to a decision dated 15 March 2017 (ECLI:NL:RVS:2017:694) in correlation with a decision dated 20 April 2016 (ECLI:NL:RVS:2016:1075). In these two decisions, the Administrative Jurisdiction Division of the Council of State (ABRvS) held that, 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. The fact that this exemption possibility was not applied in the past is not relevant to this assessment as is evident from the decision dated 15 March 2017. But what about the power to make amendments? The ABRvS holds in a decision dated 12 April 2017 (ECLI:NL:RVS:2017:1028) that no account should be taken of the power to make amendments when answering the question whether the present plan provides for a change in function that makes claim on space in the plan.
The zoning plan (and the coordinated environmental permit) concerns the redevelopment of a business premises for peripheral retail trade in what is known as the “home & living” sector in the Ekkersrijt industrial park in Son. Neddex Vastgoedfonds C.V. owns business premises in the immediate vicinity of the area covered by the plan that are let to shopkeepers and operators of catering establishments. It does not agree to the decisions in the intended development, which concerns the same sectors for living and catering in the catch area as the ones it is active in. Neddex invokes Section 3.1.6, second subsection, of the Spatial Planning Decree (Bro) (the Ladder) and fears that the plan will lead to structural vacancies and deterioration of the entrepreneurial climate at the Ekkersrijt home furnishings boulevard and reduced lettability of its buildings.
The Son en Breugel municipal council and the initiator argue that the relativity requirement as included in Section 8:69a of the General Administrative Law Act (Awb) precludes a substantive assessment of the ground for appeal involving the Ladder. With reference to a decision from the Division dated 20 May 2015 (ECLI:NL:RVS:2015:1585), they argue that Neddex can only invoke contravention with this provision if it demonstrates, on the basis of an expert report for example, that the intended development leads to relevant vacancy in its immediate surroundings.
The Division did not agree with this argument. It holds that the distance and location when compared to the area covered by the plan is relevant to the question whether it has to be demonstrated that the intended development leads to relevant vacancy (see inter alia the decision dated 9 September 2015, ECLI:NL:RVS:2015:2855, legal grounds 5.5. and 5.6). It is the opinion of the Division in view of the location of the Neddex business premises within the same industrial park and the distance of approximately 360 m from the area covered by the plan that it cannot be excluded that vacancy may arise as a result of the plan in the immediate vicinity of the Neddex business premises, which vacancy may have consequences for the local entrepreneurial climate and thus the possibilities for operating the Neddex business premises. I interpret the decision to mean that in that case it does not have to be demonstrated within the context of the relativity requirement that the plan results in relevant vacancy. In view thereof, the Division sees no ground for the conclusion that the Ladder manifestly does not serve to protect Neddex’ interests. This means that verification against the Ladder should take place as normal.
No new urban development
The council argues that the plan does not provide for new urban development as referred to in the Ladder test. According to the council, the plan does not provide for a substantial, additional claim on space when compared to the plan that applied previously. The change of function when compared to the zoning plan is therefore not such that there is a new urban development. The council puts forward by way of substantiation of the above that the zoning plan that applied previously included the power to make amendments in order to alter the business use of the plot into a designated use for peripheral retail trade that was not restricted as regards size. The present plan allows peripheral retail trade for up to at most 17,000 m2 gross floor area (GFA). What is more, a temporary exemption was granted in the past to use part of the business premises as furniture shops. It should also be noted that following on from the above the initiator argues that the use of the (existing) business premises for peripheral retail trade would also have been possible under a minor exemptions permit [kruimelgevallenvergunning] (Section 2.12, first subsection, under a, under 2°, Environmental Permitting (General Provisions) Act (Wabo) and the Bor), which means that assessment against Section 3.1.6, second subsection, Bro, is not necessary.
The Division is clear: the circumstance that a temporary exemption was granted in the past to use part of the business premises for peripheral retail trade and the possibility of granting a minor exemptions permit for this planning use does not mean, in any event, that Section 3.1.6, second subsection, Bro can be disregarded in the adoption of a zoning plan which, as in the present case, provides for a designated use of peripheral retail trade on the plot of land.
The Division subsequently established that the change of function in this case consists of a change of business to a designated use of peripheral retail trade. In view of this change to the designated use, the plan leads to a new urban development when compared to the previous planning regime. The fact that the zoning plan that applied previously included the power to make amendments for peripheral retail trade does not affect the aforementioned change of function. The reason is that the power to make amendments merely provides for the possibility of altering the existing designated use into designate use that is considered accepted within the context of the parent plan. The parent plan itself did not yet provide for that change of function, according to the Division. The latter apparently includes the difference with the power to deviate that is part of the zoning plan. The fact that the Division already considers that there is a new urban development for this reason means that the question whether the plan leads to a substantial increase in the space claimed when compared to the previous zoning plan is no longer relevant.
The thing to remember from this decision is that it is not relevant to the question whether there is a new urban development whether a temporary exemption was already granted in the past or whether the minor exemptions scheme [kruimelgevallenregeling] could be applied. In addition, possibilities for deviations within the zoning plan should be taken into account, but powers to make amendments should not, within the context of the comparison with the previous plan. I consider this to be remarkable because the customary assessment against the Ladder should have taken place when the power to make amendments was included in the zoning plan that applied previously (see for example ECLI:NL:RVS:2014:340). I am unable to grasp the Division’s consideration that “this change of function therefore had not been envisaged in the parent plan itself” when considered from the perspective of the Ladder test.
Would you like to know more about new urban developments in zoning plans? Please contact Jasper Molenaar.
By Jasper Molenaar.