Precedent decisions sometimes throw a spanner in a developer's works. This is because a preparation order occasionally causes a development to be delayed or even prevented from proceeding at all.
What will change for preparatory decisions under the Environment Act and where are the opportunities? Thijs Cornel found out.
Date: May 24, 2024
Modified May 30, 2024
Written by: Thijs Cornel
Reading time: +/- 4 minutes
"The preparatory decision stipulates that, for the entire territory of Amsterdam, it is prohibited to change the use of land and/or structures to: forms of business that, by virtue of their advertising, presentation, assortment or operation, can be qualified as so-called flash delivery services from darkstores."
In almost all major cities in the Netherlands, a preparatory decree to the above effect has been issued in recent years. The purpose of a preparatory decision is for the government to prevent activities - such as flash delivery - that conflict with new regulations being prepared. In a rapidly changing residential and business landscape, governments increasingly used the preparatory order as a stopgap measure to prevent new and unforeseen developments. In short, a preparatory decision can prevent an initiative by an individual or developer from going forward.
With the entry into force of the Environment Act, there will also be changes with regard to preparatory decisions. In this article, Thijs discusses a number of important changes, but focuses on transitional law.
Rules regarding the preparatory decision are found in the old system in the Spatial Planning Act (Wro). A preparatory decision can contain not only a construction or demolition ban, but also, for example, a use ban. Once such a decree takes effect, it is no longer allowed to perform the prohibited activities without an environmental permit. A permit application for a development in an area subject to a preparatory decision is held up.
A preparatory decision, in view of the grounds for expiry in Section 3.7 of the Wro, is in principle valid for a maximum of one year. This is because the preparatory decision lapses if a draft zoning plan has not been made available for inspection within one year of that decision coming into force. In addition, it lapses when the zoning plan under preparation is adopted.
Under the Environment Act, we will (eventually) say goodbye to all the different zoning plans per municipality. The various zoning plans must become part of a single environmental plan per municipality. The 'old' zoning plans already form a temporary variant of that environmental plan as of January 1. Changes to the environmental plan after January 1 will in principle form the 'new' part of the environmental plan.
Preparatory decisions must also go along in the same form. Decisions for which a draft zoning plan has still been submitted for public inspection before January 1, 2024, will remain subject to the old law. Those "old" preparatory decisions will become part of the temporary environmental plan. In principle, the preparatory order continues until the zoning plan is adopted.
At this time there are also many preparatory orders for which no draft plan has been made available for inspection. These preparatory orders became 'new style' preparatory orders on January 1. The rules from the 'new style' preparatory orders amend the environmental plan with pre-protection rules. Thijs distinguishes two variants:
The last change in particular is one to be aware of. Thus, preparatory decisions taken last year no longer expire after one year, but can remain in force for up to one and a half more years. It may therefore take (much) longer before opportunities arise again at the location intended for your development.
Is there only bad news then? Fortunately not! After a year and a half has passed, many municipalities where preparatory decisions are currently in place will have opportunities again. A preparatory decision will expire if no decision is made to amend the environmental plan within eighteen months. Many municipalities are (still) reluctant to amend the environmental plan given the scale of that local legislative operation. Preparatory decisions will therefore expire in many municipalities. Repeated adoption of a preparatory decision is not permitted, according to the history of its creation.
In short, after the passage of a year and a half, anything is possible again!
Are you running into the limitations of a preparation decision for your development? Contact us without obligation so that we can look for a solution together.