DIY war once again contributes to legal development

After a severe crisis, hardware stores are still struggling. The market is full, but nevertheless, entrants such as Bauhaus and Hornbach are advancing. With the State Council's ruling of March 15, 2017 (201601015/1/R1), the way was cleared for the establishment of a construction market with garden center of about 20,000 m² in Duiven. This was not without controversy.

One of the core arguments was that there is no need for such a construction market with garden center. Application of the ladder for sustainable urbanization, aimed at economical use of space and requiring a confrontation of supply and demand in the region, should therefore lead to nullification of the zoning plan. In this case, however, that confrontation of supply and demand and thus the determination of the need for the construction market was not addressed. This is because the ladder only applies if there is a new urban development. In order to assess that, it must be assessed what planological use of space the plan allows compared to the previous plan and to what extent a change of function is provided for.

 In the old plan, businesses up to and including category 3.2 could be established, but a construction market could only be established after the application of an inner plan deviation. To make use of that derogation possibility, the ladder would not have to be gone through. Then there is no new urban development now either, the Council of State said.

The argument that the within-plan deviation power had never been used and, for the connoisseurs, that it could never be used either, indeed that it should remain inapplicable within the framework of a so-called exceptive review, also found no mercy. A new assessment of the within-plan deviation power is not at issue in these proceedings, as the deviation power is included in an irrevocable zoning plan. The appeal to the exceptive review is not granted. The reasons given by the Council of State for this do raise some questions. The Council of State rules that such an exceptive review is not possible in the context of this zoning plan procedure, but would have been possible only in the context of an environmental permit procedure in which this deviation power would be used. So Hornbach escapes because (probably for very different reasons) not an environmental permit procedure with inner plan deviation was chosen, but a zoning plan procedure? While the within-plan deviation power plays a decisive role in the zoning procedure.

Conclusion

 The conclusion is that there is no new urban development. What could be achieved with the current zoning plan, including the authority to deviate, does not deviate to such an extent from what is made possible with the zoning plan. This applies to both the land use and the function. This further limits the scope of application of the ladder for sustainable urbanization.

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