Construction work objects: a road is not a structure, even if it stands on stilts

With some regularity, the question of whether a particular building plan contains a structure is litigated. This question is important, because as soon as there is a building work, an environmental permit for the activity of building (Article 2.1 paragraph 1 opening words and under a of the Wabo) must be applied for (unless permit-free). The question is further important because in the case of extensive structures, a "substantial" fee note can also be expected.

Whether a structure exists is by no means always easy to determine. The ruling on Wednesday, April 19, 2017 (ECLI:NL:RvS:2017:1099) addressed the question of whether a "pile mattress" is a structure. A pile mattress consists of a foundation of piles topped by a reinforced earth course. It is a system used for the construction of a road or railroad on soft ground (illustrations and descriptions of pile mattresses can be seen via this link ). Road builder Heijmans had referred this question to the administrative law judge, perhaps because of the fee note.

The term "building structure" is not defined as such in the Wabo. According to established case law of the Administrative Law Division, for the interpretation of the term 'building structure' a connection can be sought to a description of this term in the model building regulation (VNG). This description reads: "any structure of any size made of wood, stone, metal or other material, which at its place of destination is either directly or indirectly connected to the ground, or directly or indirectly supported in or on the ground, intended to function in situ".

The court in The Hague held that a pile mattress is a structure. However, Heijmans disagreed and appealed.

Apparently, the Administrative Law Division did not find the question presented very straightforward. The case in question was referred from a single-member chamber to a multiple-member chamber. This multiple chamber then stated that if the description of the term 'structure' from the model building regulations is met, there is a structure. Arguments that it would not be "logical" to deem structures such as a pole mattress subject to a permit requirement were not heard.

Unlike the court, the Division ultimately concludes that a pile mattress is not a structure. To reach that conclusion, however, it does not tease out the definition of the model building ordinance and apply it to the structure in question, but instead argues that the pole mattress in question is part of the construction of a road and, to that extent, cannot be separated from it. In previous case law, the Administrative Law Division has held (ECLI:NL:RVS:2009:BH9230) that a paving/road is not a structure. In line with this, it is now held that a pile mattress, as part of the road, is also not a structure, so that no environmental permit is required for the activity of building.

The Division's opinion, in light of the model building code's definition of "structure," is not very easy to follow. Looking at a pole mattress, it still seems to me that there is a structure of some size that is directly or indirectly connected to the ground and is also intended to function in situ. I therefore just remember that in order to qualify "structures" it is still necessary to follow the definition of this term in the model building regulation and that in addition to this, paving and roads are also not structures. Logical right?