The Division explains it again: explain plan rule literally

Plan rules must be interpreted literally, even if this has consequences that may not have been intended. In a Feb. 13, 2019 ruling, the Division reaffirmed this once again.

Moving corporate residence

The Feb . 13 ruling involved an environmental permit to relocate a company residence near already existing company buildings. The case specifically involved the following plan rule:

The following provisions apply to the construction of commercial buildings:

1. Company buildings shall be situated at a distance of 3 m behind the rear facade of a company residence, whereby the distance from the axis of the road on which it is built shall not be less than 15 m. In the event that no company residence is present, the distance from the axis of the road shall not be less than 15 m. If the existing distance is already less, this distance shall be considered the minimum distance from the axis of the road.

Literal text decisive

The court interprets that plan rule to mean that the provision also regulates where a newly constructed commercial home may be positioned in relation to commercial buildings. The Division does not go along with this. The Division reiterated that legal certainty requires that what is stipulated in a zoning plan can be assumed. For the sake of legal certainty, the plan rule must be interpreted literally. Thus, according to the Division, the plan rule only applies to the construction of commercial buildings near a commercial dwelling.

Unintended consequences

That interpretation is not strange given the literal text and opening words of the plan rule quoted above. In this sense, therefore, the Division's opinion is to be followed.

However, this literal explanation does have a somewhat difficult to explain consequence. This explanation means that if a farm building is built first and only then a farm house, the rear façade of the farm house does not have to be built at 3 meters behind the farm building. Conversely, a commercial building to be constructed near an existing commercial home does have to be built 3 meters behind the rear facade. Surely this does not seem to be intended.

Legal Security

It is good that the Division is leaving this unintended consequence of the plan rule with the plan legislature. Owners and initiators should simply be able to rely on the plan rules. For legal certainty, it is important that they be interpreted as literally as possible. That the systematics of the plan rule indicate that something else may have been intended is irrelevant if the literal text of the plan rule is clear in itself. This applies even if the explanation of the zoning plan may point in a different direction.

This is certainly not the first ruling in which this has been ruled. In practice, however, it will continue to happen that a municipality wishes to adhere to the intention of the plan rule, while the literal text does not provide that space. So that flyer does not fly.

Quickscan zoning plan

Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.