Bowling at the business park

Beware policy II

Bowling remains popular, and combined with other entertainment, such as glow golf, games, pool tables and catering, leisure concepts are emerging that seek a place in business parks because of their size. There the square meters are available and affordable. All this is very much against the wishes of competitors who are increasingly standing up against environmental permits for such leisure centers. Unfair competition, they say, because the competitor centers are in expensive locations in hospitality concentration areas.

How difficult it is to stop such developments is again demonstrated by a September 20, 2017 ruling by the Administrative Law Division of the Council of State (ECLI:NL:RvS:2017:2560).

Relativity and good spatial planning

The first question facing the Division is whether the competitor relied on standards that were intended to protect its interests (the relativity requirement). If that is not the case, such grounds for appeal cannot lead to the annulment of a permit.

The developer of the stadium area in Zwolle and the wok restaurant located there opposed the arrival of "Bowlen & Zo" above the Sligro in Zwolle. They argued that a deviation from the zoning plan had been wrongly granted (Article 2.12, first paragraph, opening words and under a, under 2e Wabo in combination with Section 4 opening words and under 9 Appendix II Bor, also known as the transformation provision). The court ruled that these provisions did not protect the competitive interests of the wok restaurant and the developer at all. And so they could not be invoked.

The Division thinks otherwise. The wok restaurant and the developer had not only put forward competition arguments, but also expressed the fear that the arrival of "Bowling & Zo" could lead to vacancy in their area and thus a worse business climate. And that is indeed an interest protected by the transformation provision, because the transformation provision is all about protecting the interest of good spatial planning. Preserving and restoring a spatially good business climate is part of that and therefore concerns a spatial interest. And because it cannot be ruled out in advance that the business climate for the wok restaurant and the developer will deteriorate, their arguments must also be assessed in terms of substance.

Policy

In that substantive assessment, things then still go wrong for the wok restaurant and the developer. The wok restaurant and the developer argued that the arrival of "Bowlen & Zo" at this location was contrary to the municipal hospitality vision and also contrary to the policy framework Commercial Leisure Facilities. The conflict with the hospitality vision was apparently not at issue, but rather whether it should be tested against it. After careful analysis of both policy documents, the Division finds that the Commercial Leisure Facilities Policy Framework deals with leisure facilities in a broad sense, including in combination with hospitality. And therefore the hospitality vision itself does not apply, but only applies to independent hospitality. Remarkable, because it is thus a second policy document that limits the scope of the first.

Final Conclusion

Even if a policy document, such as the Catering Vision in this case, does not itself contain a concrete limitation of the scope (to independent catering in this case), such a limitation may, according to this judgment, also follow from another - successive - policy document. In this case, the policy framework Commercial Leisure Facilities, which then deals with leisure facilities with or without catering, as a result of which the Catering Vision itself can only refer to independent catering.

So it remains careful policy.

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