Zoning plan in violation of county ordinance, but development goes forward

All provinces, for the purpose of good spatial planning, have included in provincial ordinances rules against which zoning plans and often deviations from zoning plans must be reviewed. As a rule, these regulations are called: Regulation space (hereinafter: regulation) . Most regulations contain restrictive rules for various functions. As a result, many developments give rise to discussions as to whether the plan complies with the ordinance.

If a plan does not fit within the ordinance, there are several options.

First, we can look at the waiver options included in the regulation.

Another possibility is to consult with the province to see if the ordinance can be adjusted. This may sound strange, but ordinances are already adjusted with great regularity and case law also shows that this is not infrequently a possibility.

A good example is today's ruling by the Administrative Law Division of the Council of State (ECLI:NL:RVS:2017:1948), in which a zoning plan allowed for a recreational business. Most of that recreation company was planned outside the agricultural building block of an existing building plot. This was in violation of the 2014 Regulation Space of the province of North Brabant. After all, that ordinance only allowed a new recreation company within an existing building plot.

In an interlocutory ruling, the Division had ordered the municipal council to enter into consultations with the provincial government on a possible solution to eliminate the conflict with the 2014 Spatial Regulation. Those consultations resulted in the province indicating that it would amend the ordinance. The municipal council subsequently re-adopted the zoning plan, but did so before the ordinance had actually been amended.

In today's ruling, the Council of State ruled that the first adoption decision violated the 2014 Spatial Planning Regulation. The second adoption decision also violated the ordinance because it had not been amended at the time. However, because at the time of the ruling the regulation had since been amended, the Council of State allowed the legal consequences to stand and the recreation company can therefore still establish itself outside the agricultural building area of the existing building plot.

Conclusion

If a development does not fit the ordinance, it may make sense to consult with the province with a well-supported story. Moreover, today's ruling shows that it is even possible to anticipate an amendment to the ordinance required for that zoning plan in advance of its adoption.

Quickscan zoning plan

Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.