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Ladder for sustainable urbanisation: relativity, offices, events and correction to 8:69a Awb

Ladder for sustainable urbanisation: relativity, offices, events and correction to 8:69a Awb

In a judgment dated 15 March 2017 (ECLI:NL:RVS:2017:671), the Division gives an opinion on a zoning plan that provides for five sub-plans zoned for ‘Mixed use’. The planning regime in force prior to that consisted of a detailed zoning plan that was not realised due to a change in the market conditions. The council believes that the zoning plan adopted, which allows many functions, will transform the area covered by the plan into an attractive working environment with abundant space for economic functions such as leisure/hospitality (including events), showrooms and business activity (including offices).

Two parties have opposed the plan. TKB is developing the Midden Nederland Hallen property, where it has realised, among other things, an events hall. TKB fears that a conference function will be lost elsewhere in the region. There is also an egg drying plant that fears its business operations will be impeded. It also asserts that the plan will result in vacancy in the area covered by the plan, because it insists there is no need for the functions made possible by the plan.

Competitive interest and relativity

With regard to TKB, the Division considered that TKB’s interest in application of section 3.1.6 (2) of the Spatial Planning Decree lies entirely in its competitive interest. As the Division considered in the judgment dated 20 May 2015 (ECLI:NL:RVS:2015:1585), if a competing party like TKB asserts that the decision is at odds with the Ladder, it must present facts and circumstances that justify the view that the prospective development could result in vacancy that is relevant from the perspective of good spatial planning. In the context of this assessment, it can be discussed whether the contested decision could cause vacancy effects such that this could result in a situation that is unacceptable from the perspective of good spatial planning. In this consideration, the administrative court will include the opinion of the administrative body involved concerning the degree to which these vacancy effects are unacceptable.

In this context, the Division considered that TKB’s Midden Nederland Hallen property is not located nearby the area covered by the plan, so that vacancy in the conference centre in the area covered by the plan does not affect TKB’s business climate. TKB also did not demonstrate that realising the conference centre will result in vacancy relevant from the perspective of good spatial planning in the proximity of TKB’s Midden Nederland Hallen property. In these circumstances, the Division found that section 8:69a of the General Administrative Law Act (Awb) stands in the way of nullification of the plan because of the Ladder. The Division will not discuss the substance of this ground for appeal, therefore.

The Ladder and offices

The egg drying plant argued that the offices made possible by the plan must be tested against the Ladder. The Division does not comment on whether allowing 63,000 m2 of GFA for offices qualifies as urban development, because the council explained during the hearing that this area in offices will not be realised. Nonetheless making this quantity of office floor space possible is not in the interest of good spatial planning. Furthermore, the council also stated in the hearing that it wanted to reduce the number of square metres of offices to a substantially lower level. To the extent that the plan makes 63,000 m2 of GFA for offices possible, it was not prepared with the due care requisite in this context. For this reason, this section of the plan is nullified.

The Ladder and other functions from the plan

The egg drying plant also argued that the plan contravenes the Ladder as far as several other functions are concerned. In this context, it argued against the permitting of the functions of studio, cinema, bowling centre, music school, sauna and wellness centre, hotel, conference centre, restaurant, health care facility, education and religious function. In its view, the need for these functions has not been adequately substantiated and too little attention has been devoted to the offerings already available. The council said in response to this that the current regional need was adequately substantiated, which reportedly follows from the plan explanation and a report.

New urban development

The Division found itself confronted with the question of whether the proposed situation constitutes new urban development. In answering this question, the Division believed that the following must be assessed, in combination with each other: to what extent the plan, compared to the previous plan, provides for a change in function and what claim on the space the plan in question makes possible compared to the previous plan. The Division then observed that the plan on balance provides for more planning permissions than provided for by the detailed zoning plan in force previously. The zoning plan also permits significantly more and different types of functions than permitted by the detailed zoning plan. This prompted the Division to conclude that the plan provides for new urban development. This brings the Division to tread 2: current need.

No current need

As regards the question of whether there is current regional need, the Division stated that it does not follow from the report’s conclusion – which states that the hotel will take just a modest market share in the region – that there is a current regional need for the hotel. In relation to the conference centre, the report already concluded that there is a considerably large number of venues on offer. It is also not demonstrated that the conference centre will satisfy a qualitative need. Nor does it emerge that there is a current regional need for the conference centre. The size or number of the facilities for the cultural and relaxation functions has not been capped, so that the plan permits more than the council claims there is a need for. For the other functions, no investigation – or insufficient investigation – was carried out into the current offerings and/or demand on the market. It should come as no surprise that the foregoing prompted the Division to conclude that it has not been demonstrated that there is current regional need. The plan was therefore adopted in contravention of the Ladder.

Relativity and the events regulations

TKB asserted that the fact that the plan contains no use restrictions for the events is at odds with the principle of equality. According to TKB, the plan must contain regulations for the number of visitors per day, per event and per year, for the number of events per year and the type of events, because such rules were also stipulated for its own events halls. The Division found that TKB was relying on the standard of good spatial planning from the perspective of an acceptable residential environment and living conditions. This aspect of this standard is to guarantee that allowing events does not result in unacceptable deterioration of the residential environment and living conditions. This aspect obviously does not aim to protect TKB’s interests. These interests are of course in remaining safeguarded against a new conference centre in its catchment area.

Correction to application of section 8:69a Awb

It is also worth noting that in connection with its ground for appeal concerning the events regulations, TKB invoked the principle of equality. As the Division found in its judgment dated 16 March 2016 (ECLI:NL:RVS:2016:732), successful reliance on the principle of equality can result in correction to the application of the relativity requirement. Experience shows that such reliance is often not honoured. This fails in this case too, because the floor area of the conference centre made possible by the plan is limited to 1,200 m2. The area of the grounds for TKB’s events halls is many times greater, in contrast. Events outside the structural area are also permitted on TKB’s grounds. In view of this, the Division was of the opinion that the situations TKB is comparing differ from each other. Since TKB’s reliance on the principle of equality fails, this reliance cannot result in correction to the application of the relativity requirement. The Division refrained therefore from making a substantive assessment of the argument concerning the events regulations.

Ultimately, several important parts of the particular zoning plan are nullified on account of conflict with the Ladder. Interested in knowing more about this? Contact Jasper Molenaar.

By Jasper Molenaar

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