Date: March 24, 2017
Modified November 14, 2023
Reading time: +/- 2 minutes
Because buildings are normally zoned according to their existing use, transforming industrial sites to another function often violates the zoning plan. In that case, permission from the municipality is required. The transformation scheme of the crumbling case regulations offers a potentially nice procedure to obtain that permission in a relatively simple way. However, the scope of the transformation regulation has become so broad that there are also all kinds of legal and practical objections to its application.
Changing uses often means that it is necessary to deviate from the zoning plan. After all, most buildings are zoned according to their last use. Municipalities have four options for resolving conflicts with the zoning plan:
The within-plan deviation authorization may not have the effect of actually enabling another zoning,[5] so this deviation authorization is not usable for transforming industrial sites, because transforming refers precisely to putting an existing structure into use in deviation of the original zoning.
For options 3 and 4, these decisions must be prepared using an extensive procedure (the "uniform public preparation procedure"). This procedure quickly takes 26 weeks (and this period can be extended by another six weeks). Moreover, these procedures generally require the approval of the municipal council. In fact, a (postage stamp) zoning plan must be adopted by the municipal council. The municipal council must also issue a declaration of no objections if a Wabo project decision is being prepared, unless the municipal council has previously issued a generic declaration of no objections that also applies to this specific project.[6] Since the municipal council is a political body, their decision-making is quite often subject to political influences. This does not benefit the speed and reliability of this decision-making. Especially when vacant property is involved, it is important that this property can be put back into use as soon as possible.
What remains is option 2, the crumbly case procedure. For some time now, the possibility has existed to transform existing[7 ] structures to a use that is contrary to the zoning plan via the shorter regular procedure. For this regular procedure, a decision must in principle be made within eight weeks of the application (to be extended by six weeks). Moreover, that permit arises by operation of law if the college decides too late. The college will therefore normally ensure that a decision on such an application is actually made within a maximum of 14 weeks.
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Until November 1, 2014, that transformation regulation was subject to the condition that it allowed the transformation of structures with a gross floor area of up to 1,500 square meters, while keeping the number of dwellings the same. These conditions proved to be very restrictive. In fact, there are not many structures on industrial estates that have an area of less than 1,500 m². Most office buildings are also considerably larger. Moreover, because of the requirement that the number of dwellings could not increase, it was not possible to use the transformation regulations to change, for example, business premises that were already surrounded by residential buildings into residential buildings.
Therefore, the transformation scheme was not overly used until November 1, 2014. The buildings interesting for transformation generally had a size larger than the maximum gross floor area of 1,500 m2. Moreover, transforming to a residential function was therefore not possible at all, as this would normally increase the number of dwellings.[8]
As of November 1, 2014, for existing structures within built-up areas, it is possible to change those structures and adjacent land to any other use through the transformation regulation. Since then, the area requirement has been dropped and it is allowed to add dwellings. It was also clarified at that time that construction activities leading to changes in appearance are also permitted.[9] Outside built-up areas, transformation is currently only possible for the purpose of an accommodation function for employees or the reception of asylum seekers or other categories of aliens.
The extension of these rules was prompted by the fact that around that time about 20% of office space was vacant. For inner-city office space in particular, those structures are often relatively easy to convert to housing.[10]
The broadened application possibilities of the transformation scheme are to be warmly welcomed. After all, practice showed that transforming was only really interesting when it also involved substantial surfaces, which made the transformation scheme a wash until November 1, 2014.
Since the broadening of the scope, the transformation scheme can theoretically be applied much more often and very large projects can be realized on the basis of this scheme. Actually, it is also only since the broadening of the scope that the scheme can actually be used for its purpose: to "clean up" and prevent large-scale vacancy.
However, with the broadening of the transformation regime, another problem immediately arose. Namely, the transformation regulation is now so broad that it can no longer be excluded that significant environmental consequences may occur as a result of that transformation. Therefore, in Appendix II of the Environmental Law Decree, art. 5 sixth paragraph was added. The sixth paragraph of art. 5 states that the transformation regime may not be applied if it concerns a transformation to an activity as referred to in part C or D of the appendix to the Environmental Impact Assessment Decree (hereinafter: MER Decree). In that case, the deviation from the zoning plan can only be authorized through the extensive procedure. The exception of Section 5, subsection 6 (hereinafter: Mer exception) has major consequences for the usability of the transformation regime.
This exception stems from the original European law obligation to examine, before allowing spatial developments, whether these developments may have consequences for the environment and to examine whether there are (less damaging) alternatives. Because the transformation regulation is not limited to certain functions and no longer has a limitation in surface area, it can no longer be guaranteed that transformations will not have significant environmental consequences.
The reference to the Annex of the EIA Decree is intended to provide a criterion that is clear for implementation practice.[11] Nothing could be further from the truth.
There are very many categories in the Annex of the EIA Decree that have the potential for environmental impact. For example, one of those categories is D11.2, the "urban development project. Threshold values have been formulated for all of these categories. These threshold values in themselves provide a clear assessment framework for the question of what research must be carried out when preparing a particular plan. However, the explanatory memorandum accompanying the amendment to the transformation regulation states that the threshold values are not relevant to the applicability of the exception.[12] This creates problems of interpretation.
As an example, for the transformation scheme, the aforementioned category D11.2 is particularly interesting. Category D11.2 concerns "the construction, modification or extension of an urban development project including the construction of shopping centers or parking lots." The applicable thresholds[13] for this may not be used. But the term "urban development project" is vague and can encompass very many things. Moreover, this concept is not defined in the EIA Decree. According to the Administrative Law Division of the Council of State,[14] the definition of the term "urban development" in Article 1.1.1, paragraph 1 (i) of the Spatial Planning Decree can be used to define the term. This definition reads as follows:
"Urban development means spatial development of an industrial or seaport site, or of offices, retail, housing sites or other urban facilities."
This description is still broad and moreover not exhaustive. If everything that is an urban development based on the definition in the Spatial Planning Decree is also an urban development project as referred to in Decree Mer, the transformation regulation for transformation for the benefit of a few houses, a store or a cinema[15] is not applicable.
Again, that cannot have been intended. Indeed, this would make the scope of the transformation regulation smaller than it was before the Nov. 1, 2014 amendments.
Although the "broader" transformation regulation has been in place for over 2 years now, there is not yet complete clarity in legal practice regarding the consequences of the Mer exception. The lower courts and the preliminary relief judge of the Administrative Law Division of the Council of State have now issued some rulings on this Mer exception, but until there is a final judgment from the Division, there remains uncertainty about the consequences of this provision.
There is little chance that the Division will ultimately rule that every spatial development of business parks, seaport areas, offices, retail, housing locations or other urban facilities is an urban development project as referred to in Decree Mer. After all, that would make the transformation regulation practically unusable. Perhaps the Division will follow its case law on whether or not there is an urban development within the meaning of the ladder for sustainable urbanization.[16]
Whatever the ultimate judicial line will be, a clear factual and concrete assessment framework for the applicability of the Mer exception will not be possible, in my view, without legislative intervention. This is a risk for municipalities and developers.
If a municipality must assess whether there is an urban development project on the basis of vague and abstract standards, the risk arises that it wrongly concludes that there is an urban development project. This also creates the risk that it will wrongly handle an application through the extended procedure.
If the municipality wrongly applies the extensive procedure, a permit arises by operation of law and there can no longer be a substantive review of the application. Although an objection phase may then follow in which the decision is fully reconsidered, this is a far from desirable method of decision-making for projects with potentially large spatial consequences and major financial interests.
This ambiguity also has negative consequences for the applicant, because the legal ambiguity will result in more frequent objection and appeal procedures against such environmental permits. Objection and appeal procedures are not only expensive but, above all, cost a great deal of time.
Although the scope of the transformation regulation has been broadened to a usable scope since November 1, 2014, the uncertainty created by the new Mer exception has made the ability to apply the transformation regulation dependent on (too) abstract review standards. Because of the legal uncertainty and the resulting objection and appeal procedures, the transformation regulation loses the advantage it offered: speed.
The conclusion, therefore, is that the transformation regulation in its current form is too unclear and legally uncertain and therefore cannot offer practice the speed for which it is intended. It is up to the legislator to do something about this, but the question is whether European law obligations offer enough room to do so.
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[1] Section 2.12, subsection 1(a.) and (1) Wabo.
[2] art. 2.12, first paragraph, subsection a. and under 2 Wabo jo. art. 2.7 jo. art. 4 Annex II Bor.
[3] Art. 2.12(1)(a) and (3) Wabo.
[4] Art. 3.1 Wro.
[5] ABRvS, ECLI:NL:RVS:2012:1208, dated June 6, 2012.
[6] This can be done on the basis of Art. 6.5(3) Bor.
[7] "Existing" does not mean that conversion is not allowed.
[8] Transforming a residential function to another residential function was allowed, but even then the number of dwellings had to remain the same.
[9] Stb. 2014, 333, p. 55.
[10] Linhard et al. motion, Parliamentary Papers II 2009/10, 32 123 XI, no. 38.
[11] Stb. 2014, 333, p. 58.
[12] Stb. 2014, 333, p. 58.
[13] 1°. an area of 100 hectares or more, 2°. a contiguous area and 2,000 or more dwellings, or 3°. a business floor area of 200,000 m2 or more.
[14] Vzr. ABRvS, ECLI:NL:RVS:2016:3279, dated December 7, 2016.
[15] Leisure facilities can also be an urban development within the meaning of Bro. See: ABRvS, ECLI:NL:RVS:2013:BY8002, dated January 9, 2013.
[16] In that case law, to determine whether there is an urban development, the Division looks at the nature and scale of the development compared to what was already possible on site from a planning perspective.
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