When should a fast food restaurant close its doors if it must be closed at night? Is it at midnight or at 2 a.m. at night? The Division ruled in its July 11 ruling (ECLI:NL:RVS:2018:2288) that - if the municipality's documents do not clarify this - normal speech should be assumed. In this case, that means that the night starts at midnight, regardless of what the General Local Bye-Law (APV) says. McDonald's, the fast-food restaurant in question, must therefore close as early as midnight, even though the municipality's intention was to comply with the APV that assumes 2 a.m.
Closed at night
McDonald's applied for a permit to build a new restaurant and associated parking lot in this case. The college granted this permit, with a condition in a starting memorandum prepared by the council that the establishment must be closed at night. If the college stays within the conditions in this memorandum, no separate council approval is needed. The permit itself does not include this condition.
Neighbors opposed to the arrival of McDonald's argue that closing overnight means the restaurant must close at midnight. According to the college and McDonald's itself, the council in the starting memorandum wanted to follow the APV, which regulates a closing time of 02:00.
As a result, the case ended up before the district court, which ruled in an interlocutory ruling that the meeting documents were inconclusive as to what the council meant by the condition and what opening hours it had in mind at the time. According to the court, the council's decision that was submitted also does not show what the phrase "closed at night" means.
Normal speech
As a result, the court decides to interpret the term according to its meaning in normal speech. According to the court, ''at night'' means the time between 24:00 and 07:00. This means that the establishment of McDonald's must be closed between these times, since this was set as a condition in the starting memorandum.
Because the college did not attach this condition to the permit, the court found that the decision was not carefully prepared and gave the college the opportunity to amend the permit. However, the college then includes in the permit conditions that it nevertheless aligns with the APV and thus allows McDonald's to be open until 02:00 a.m., rather than 24:00 a.m. as the court found.
In its final ruling, the court thereby decides to overturn the college's decision as yet and decide the matter itself by ruling that McDonald's must be closed from midnight to 7 a.m.
The Division's opinion
The Division follows this reasoning and considers that the District Court was right to interpret the condition from the starting memorandum as meaning that the night starts at 24:00 and not at 02:00 or even later. Since the college did not use that time in implementation of the interlocutory ruling, the defect was not remedied and the court was therefore justified in setting aside the decision.
Conclusion
As with explaining provisions in the zoning plan, normal speech will be considered if the decision itself does not provide sufficient clarity. If what the applicant and municipality have in mind differs from what should be understood by a certain term in normal speech, it is therefore wise to state this clearly in the decision. After all, if it is clear what is meant, normal speech is no longer used.
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