Dark stores too dark to be retail

In more and more cities, flash delivery companies like Flink, Getir and Gorillas are establishing themselves with the promise of delivering groceries to your door within 10 minutes. A nice promise, but with new initiatives often come new problems. This is no different with flash delivery services. One is the question of how such services should be assessed from a planning perspective. Flash delivery companies are increasingly establishing themselves in storefronts in the center of cities, but according to a recent ruling by the preliminary injunction court, the so-called dark stores of flash delivery companies do not qualify as retail.

Preparatory decision against flash movers

Speed camera operators are establishing themselves in more and more municipalities. Municipalities are trying to hinder the arrival of new flash movers through various means. Perhaps not so much because they are opposed to it, but mainly because flash movers fall between the cracks in terms of planning. In several municipalities preparatory decrees have been or are being made to prevent the establishment of new dark stores in undesirable locations. Within a year, a zoning plan to the same effect will be submitted for review. We previously wrote a blog about the (im)possibilities for municipalities to act against the presence of these dark stores on the basis of the zoning plan. Indeed, it is not easy to say how dark stores should be qualified in a planning sense.

Dark store a distribution center

In Oegstgeest, a flash delivery company wanted to open a dark store in a shopping street with (mostly) small-scale retail. The flash delivery driver had already purchased the property and had begun renovation work for its use as a dark store. According to the zoning plan in force on the site, retail trade, with the exception of supermarkets, is permitted. The zoning plan has the following definition of retail:

"the business of offering for sale (including display for sale), selling, renting, leasing and delivering goods to persons who purchase, lease or rent goods for use, consumption or application other than in the conduct of a trade or business. A supermarket is not permitted unless specifically indicated."

The flash delivery company believes that the online sale of groceries falls within the above definition. According to the municipality, a dark store does not meet the definition of retail. According to the municipality, a dark store most closely resembles a distribution center, from which the logistics of goods are concentrated. This is because products are not visibly sold on site, nor can groceries be picked up on site. The municipality therefore imposed a preventive order under penalty in order to prevent the location from being used as a dark store.

Retail or no retail

In determining whether or not there is retail trade, according to the court in preliminary relief proceedings, a great deal of value must be attached to the "display for sale" in the definition of the zoning plan. The question is whether the display should also include the offering of products via an app.

The answer to that question, according to the preliminary relief judge, must be in the negative. This is because the windows of the dark store are completely taped off so that the products are not (will not be) visible to the public from the public road. Customers cannot pick and buy products on site either. The fact that you can see on an app which products are available on site does not make it a case of display for sale, according to the court.

In the opinion of the preliminary relief judge, the use as a dark store therefore did not qualify as retail trade within the meaning of the zoning plan. The use as a dark store was therefore contrary to the plan regulations and the municipality was entitled to take (preventive) enforcement action against it.

Implications for practice

A real conclusion cannot yet be drawn as a result of the judgment of the preliminary injunction court; after all, it remains a preliminary judgment. In addition, the definition of retail trade may vary from one zoning plan to another. In this case, the court in preliminary relief proceedings attaches great value to the literal text of the retail definition. With a broader definition, it will be more difficult for municipalities to exclude flash movers from the city center. Moreover, in areas with a mix of functions (including retail), zoning plans often allow functions other than retail. In short: it must be considered on a case-by-case basis whether the establishment of a dark store is possible.

Developments surrounding speed camera operators have followed in rapid succession recently. Time will have to tell whether municipalities are able to successfully keep flash movers out or whether the zoning plan proves unsuitable for enforcement when flash movers cause a nuisance. To curb possible nuisances, an approach via the "public order" may be more obvious.