Government must show itself to be a reliable partner

The municipal council has great freedom to adopt a zoning plan, but also to ultimately refuse to adopt a (draft) zoning plan. With such a refusal decision, the municipal council does face a critical review by the administrative judge, especially if an initiator has been in consultation with the municipality for years and an agreement on the proposed development (with the college) has already been concluded.

A good example of a critical administrative law test, can be found in the March 8, 2017 decision of the Administrative Law Division of the Council of State(201602984/1/R2), which deals with a decision of the City Council of Oss. After a long preliminary history, the council ultimately decides not to adopt a zoning plan for the realization of 6 dwellings.

What was going on?

The promoter had been in discussions with the college for years about the realization of housing in exchange for closing a gas station. The arrangements were laid down in an agreement. Then the city council refused to adopt the zoning plan, despite the fact that housing was mentioned as a possibility in the policy, the initiator had already had to make do with fewer dwellings than in previous plans, and in the agreement had already waived any compensation for planning damage.

The municipal council defends itself before the administrative law judge, arguing that it is not bound to adopt a zoning plan because of the agreement. The city council cannot get away with that. Partly in view of the history of the entire project extensively cited in the judgment, the Division is of the opinion that although the municipal council cannot be obliged to adopt a zoning plan which it does not consider to be in accordance with good spatial planning, the agreement is a circumstance which the council must take into consideration when adopting the plan. In doing so, the municipal council will have to show clearly how the interests of the initiator were involved in the decision. In this case, the Division concludes that the interests of the initiator have not been sufficiently considered. Mentioned are, among other things, the circumstance that he has renounced building possibilities, will not ask for planning damage and has incurred costs for the studies for the draft plan.

It is established case law that when deciding on zoning plans, the municipal council itself has policy discretion and must weigh all the interests involved. The administrative court never does this balancing of interests itself, but only judges whether the decision of the municipal council is lawful. But beware, in situations with a rich history and the existence of contractual agreements with the college, the municipal council cannot get off scot-free in the administrative court! It is now up to the Oss City Council to make a new decision. Given the clear indications of the administrative judge, it is obvious that the municipality will show itself to be a reliable partner in the retake....

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