It often happens that a building plan largely fits within the zoning plan, but on a relatively small part it must be deviated from. Such a deviation can be granted by means of an environmental permit. When assessing the application for that permit, the Municipal Executive must weigh up the interests. In this balancing of interests, the Municipal Executive must take into account the possibilities already offered by the zoning plan.
Review framework deviation from zoning plan
In situations where a building plan does not fit entirely within the zoning plan, an environmental permit is required to deviate from the zoning plan. It must then be assessed whether the building plan is appropriate in comparison to the possibilities already offered by the zoning plan, according to, among other things, an already older ruling by the Division with number ECLI:NL:RVS:2005:AU0431. The idea behind that comparison is that because of the formal legal force of the zoning plan, it is not obvious to have to reassess existing planning possibilities in the event of a deviation.
Fictitious building plan in accordance with zoning plan
The Division has confirmed in a recent ruling that when assessing the deviation from a zoning plan, you start from the notional realization of what the zoning plan already allows.
In the proceedings on which the Division ruled on May 27, 2020, the interested party owns a plot of land and the business premises located thereon. Because the interested party wants to convert the office function of the top floor into two residences, he applies for an environmental permit. However, the use of the business premises as residential accommodation does not fit within the zoning plan. The college grants an environmental permit to deviate from the zoning plan by applying the "transformation provision" in the 'kruimellijst'.
The appellant lives next to the interested party's property and disagrees with the environmental permit granted. She fears that the two residences will lead to an unacceptable violation of her residential and living environment. Among other things, she argued that her privacy would be violated as a result of direct views from the residences into her home and garden.
The Division considered that there may be an encroachment on the appellant's residential and living environment, but that this encroachment is not so disproportionate that the Municipal Executive should have given it greater weight when weighing the interests. The Division considered that the maximum permitted use under the current zoning plan could also have a negative impact on the residential and living environment of nearby residents, including the appellant. After all, the zoning plan allows businesses, and they too may be open in the evening and on weekends. Viewed this way, there are in fact no effects other than effects that could occur based on the zoning plan.
Compare spatial effects with spatial effects zoning plan
Thus, the Division compares the spatial effects of the variance with the spatial effects that could occur with realization in accordance with the zoning plan.
If you submit an application to deviate from the zoning plan, it is very important that you make it clear in the justification of the application to what extent other spatial effects will occur. This is because the spatial effects that are already possible based on the zoning plan do not have to be assessed (again). This prevents you from having to justify again the building possibilities already included in the zoning plan for a relatively minor deviation, and you only have to justify the (often relatively minor) consequences of the deviation.
Quickscan zoning plan
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