A zoning plan determines the building and use possibilities you have. But it often happens that your desired building plan does not (just) fit into those possibilities.
A ruling by the Administrative Law Division of the Council of State on February 28, 2018(ECLI:NL:RVS:2018:699) shows that it is very possible to be creative with your building application and stretch boundaries. The requirements for this are nicely juxtaposed by the Division in this ruling.
The case study
The ruling concerns the construction of a house with an outbuilding in Velddriel. The building plan does not fit entirely into the zoning plan. However, the applicant believes that the portion that does not fit into the zoning plan is permit-free.
He submitted an application for his building plan, whereby the enclosed construction drawing clearly indicated which parts of the building plan were, in his opinion, permit-free. In his judgment, no deviation from the zoning plan needed to be granted because the portion that did require a permit fit completely within the possibilities set forth in the zoning plan.
'Pinstripe method' is allowed and provides additional opportunities
In this ruling, the Division begins by considering that if an applicant for an environmental permit wants to leave parts of a building plan out of the application, because he believes they can be built permit-free, he can do so primarily by not including those parts in an application. Then those parts will also not be included in the assessment.
However, if an applicant chooses to also include (in his judgment) permit-exempt components in the application, it must be unmistakably clear from the application for an environmental permit which components of the building plan are and for which no environmental permit is being requested, and what the area of the building plan for which permit is being requested is. It is up to the applicant to make that distinction.
If the judgment is subsequently that the included permit-free sections are indeed permit-free, no deviation from the zoning plan is required. If other review criteria (Buildings Decree 2012, the building regulations and aesthetics) are also met, as far as the parts requiring a permit are concerned, an application cannot be refused and a permit must be granted.
In this case, in the opinion of the Division - which incidentally deviates from the earlier opinion of the court - the applicant has indicated sufficiently clearly which parts he believes can be realized permit-free and are intended to be left out of the application. The shading included on the construction drawing is sufficiently precise and is not open to multiple interpretations.
Requirement: building plan must be functionally and structurally divisible
The Division then notes that a requirement does apply for being able to apply the "pinstriping method. Indeed, it is settled case law (including ECLI:NL:RVS:2017:1770) that splitting a building plan consisting of different parts is in principle not possible. A building plan can only be split if it consists of parts that can be distinguished from each other from a functional and architectural point of view.
And the applicant's building plan did not meet this requirement. In fact, on the building plan, the boundary between the main building designated as requiring a permit and the addition designated by shading as permit-free crossed the space designated on the building plan as the kitchen. According to the building plan, however, the kitchen forms one space, which cannot be functionally and structurally distinguished in any way into two separate parts. Therefore, according to the Division, the kitchen cannot be functionally and structurally distinguished into two separate parts. As a result, the kitchen as a whole must be included in the assessment.
With that, according to the Division, there is an application that conflicts with the building possibilities of the zoning plan and a permit to deviate from the zoning plan is required. Whether there is a willingness to deviate from the zoning plan is then up to the college.
Conclusion
The lesson to be learned from this ruling is that it is possible to be creative in submitting a building application to stay within the building possibilities of a zoning plan. It is possible to make use of the permit-free options when submitting the application. The requirement for this is that it must always concern components that are distinguishable from one another from a constructional and functional point of view.
Moreover, in these proceedings, the college found the observed deviation acceptable and granted the requested permit. The Division also upheld that permit.
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