When the municipal council adopts a new zoning plan that restricts the possibility of expansion on a property, the municipality may owe planning damages to the owner. A September 19, 2018 ruling(ECLI:NL:RVS:2018:3026) revolves around this situation. The Division ruled that in this case the municipality was not allowed to simply leave an amount two percent of the decrease in value for the owner's account, because this legal threshold only applies to another type - namely indirect - of plan damage. Therefore, pay close attention to the type of planning damage you are requesting and do not simply be fobbed off with an allowance that is too low!
Direct and indirect plan damages
The adoption of a new zoning plan can result in two forms of planning damage: direct and indirect planning damage. With direct planning damage, the owner of an immovable property suffers damage because the possibilities on his own property are restricted. Indirect planning damage involves damage caused by unfavorable developments in the immediate vicinity. An example is the situation in which a high apartment complex is made possible on an adjacent property, as a result of which the owner of the other property sees his view and privacy diminished.
In the latter case, the Spatial Planning Act provides that at least two percent of the decrease in value remains the responsibility of the applicant. This is the normal social risk, which everyone must take into account.
Direct plan damage, but still the two percent threshold
In this case, the council of the municipality of Werkendam adopted a zoning plan which, among other things, restricted the possibilities for use and expansion on a business park. The owner of this business park therefore submitted a request for compensation for planning damage, because the value of his immovable property was reduced by the plan.
The college acceded to the request and decided to grant relief, but determined that two percent of the decrease in value would remain the responsibility of the owner. That, according to the college, was the normal social risk, which the owner had to take into account. In doing so, the college aligned itself with the statutory minimum lump sum, which is standard for indirect planning damage. According to the Board, this threshold also applies to direct planning damage.
The court agreed with the college and ruled that the college was reasonably entitled to hold that the two percent threshold of the decrease in value remains the applicant's responsibility. In doing so, the court pointed to the college's discretion, making it up to the college itself to determine the extent of the normal social risk.
No standard threshold, but demonstrate that development was foreseeable
However, the Division ruled otherwise. The statutory minimum lump sum simply does not apply to direct plan damage. This means that the Board must investigate whether the damage falls within the normal social risk. It must be examined whether the applicant can bear all or part of the damage. The decisive factor is whether the relevant planning development was in line with the applicant's expectations and also whether the damage is not disproportionate in relation to the value of the immovable property.
In this case, the college had not examined at all whether this development was in line with expectations, leading the Division to declare the appellant's appeal well-founded.
Keep paying close attention!
A standard threshold of two percent of the decrease in value, which remains at your own expense, does not apply in the case of direct planning damage. This means that the college cannot simply decide to reduce the compensation by two percent, but must always demonstrate that a development was in line with your expectations. So when submitting a request, always pay close attention to whether the college has done this, because this can save you a lot of money!
Quickscan zoning plan
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