The Board of Mayor and Aldermen may refuse an environmental permit to build a company residence if the company residence is not necessary for business operations. The applicant must make it plausible that the company residence is necessary for business operations. The fact that alternatives are also possible is not decisive in this regard. The Division explains this again in its ruling of October 9, 2019.
What's going on?
The director of a company, the applicant for the permit, operates a yacht yard in Zutphen with his wife. In connection with the operation and business of the yacht yard, they live with their family in a company residence at the yacht yard. They wish to occupy a newly built company residence, replacing the already existing company residence, at the same location. For this reason, an environmental permit has been requested.
Pursuant to the zoning plan, a company residence is permitted on this parcel. Business residence means:
"a dwelling in or near a building or on land, apparently intended only for (the household of) a person, whose accommodation there is necessary in view of the purpose of the building or land."
The college denied the environmental permit because the applicant has not demonstrated that on-site housing is necessary for business operations. Indeed, alternative measures are conceivable. Therefore, according to the college, the building plan violates the zoning plan. The applicant disagrees and objected to the refusal decision. The college maintained its position in the objection, followed by appeal and appeal by the applicant.
Applicant must demonstrate need
The applicant's main argument is that the court should have recognized that the college did not adequately justify why the information provided did not demonstrate the need for a business residence. The college did not provide an understanding of when the requirement of necessity is met.
The Board is of the opinion that it does not have to demonstrate why there is no necessity, but that the applicant must demonstrate that there is a necessity. It follows from previous case law of the Division that there is a necessity if the business processes on site demand so much time and attention that on that basis a reasonable interest to live on the parcel must be deemed present. The applicant must make a plausible case that this interest exists.
According to the Division, however, this does not negate the fact that in refusing the environmental permit, the board must provide insight into why the applicant has not made it plausible that the company residence is necessary.
College must properly justify why necessity is not well demonstrated
In the decision on objection, the Board only indicated that for all the points mentioned by the applicant in the application in support of the necessity of the company residence, other measures were conceivable. According to the Division, in doing so, it did not make clear why the applicant has not made a plausible case for necessity.
The Division considers that the applicant's reasonable interest in living on the parcel in question also plays a role in determining necessity. Even if measures were taken, such as hiring staff, this interest could still exist. The Board did not manifestly include the applicant's interest in the business residence in its balancing of interests. Nor did the college consider the circumstance that it was to replace an existing company residence.
In addition, the college did not dispute that the yacht yard's management work covers 60 to 70 hours weekly. However, it does state that these activities can be performed by hired staff. However, the Division considers that the hiring of personnel does not automatically mean that a company residence could not be necessary from an economic point of view. Furthermore, it also does not automatically negate the reasonable interest that the applicant may have in the company residence.
All these circumstances lead to the conclusion that the decision on objection was not properly reasoned. The court judgment is reversed and the college is ordered to issue a new decision.
Conclusion
It follows from this ruling that it is up to the applicant to make it plausible that a company residence is necessary. Only if that necessity is disputed by the college on reasonable grounds, there is reason to refuse the environmental permit. In any case, the fact that alternatives are conceivable is not in itself a reason for refusal.
Finally, it is good to be aware that when the operator stops his business (due to retirement or disability) and continues to live in the company residence, the necessity is removed. This may create a conflict with the zoning plan, in which case the college may take enforcement action. To avoid this, it is wise to see exactly what the zoning plan says about company residences before the operation is terminated.
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