There is quite a bit of debate in proceedings before the administrative courts concerning permits and zoning plans about the interpretation of terms. For example, about whether a desired use is permitted under the zoning plan. Or about whether a desired transformation is consistent with municipal policy and the conditions and terms contained therein.
Administrative law judges tend to follow a set line in these discussions. The starting point is that the first thing to look for is a definition. If there is no definition, the dictionary (the "Dikke van Dale") often comes into play to explain a concept. The reason for this assessment lies in legal certainty. Rules should be as clear as possible for everyone.
It follows from a June 27, 2018 Council of State ruling (ECLI:NL:RVS:2018:2126) that a "logical interpretation" of a term can also be decisive.
What was going on?
This case concerns the desired transformation of a property in Pannerden into a sandwich store. The use of the premises as a sandwich store was not permitted under the zoning plan. In these proceedings, the college granted a permit to deviate from the zoning plan on the basis of the so-called "minor cases list.
The operators and owners of two adjacent hospitality properties disagree with the granting of the environmental permit and are launching objection, appeal and appeal proceedings. In doing so, they argue that the permit was granted in violation of municipal policy.
Municipal policy: 'need' for transformation?
Municipal policy includes the following condition for granting a permit for the requested transformation:
changes in the use of structures may be permitted provided the need is demonstrated and the considerations for deviation are carefully justified
According to the operators, there is no such thing as "necessity. They refer to the dictionary ('De Dikke van Dale'), which defines necessity as:
circumstance that something is very urgent or unavoidable
There is no such thing in the case of the sandwich store, according to them.
In contrast, the college argues that it was never the intention of the policy rules to make deviations from the zoning plan categorically impossible. Because almost never will there be "necessity" within the meaning of the dictionary definition, with the operators' interpretation, a permit could (almost) never be granted.
The college wants to assess the desirability and spatial acceptability of an initiative on a case-by-case basis. According to the college, the "necessity" may be motivated, for example, by the policy desire to combat vacancy and increase the liveliness and livability of the center.
Dictionary or 'reasonable explanation'
In itself, the operators' contention is not strange, since the Division uses the dictionary with some regularity to provide an explanation of terms. Nevertheless, the Division does not follow this argument in these proceedings.
The Division states that a "reasonable interpretation" of the concept of "necessity" can be used in this case. That "necessity," according to the Division, must consist of the fact that the granting of a permit "serves weighty spatial interests.
The "substantial spatial interest" in this case concerns the preservation of the livability of the small cores as pursued by the Municipal Executive. The Division followed the Municipal Executive in arguing that a sandwich store at the location will increase the attractiveness and liveliness of the center and is therefore a planning improvement. Thus, according to the Division, the "necessity requirement" of the municipal policy is met.
Conclusion
It can thus be inferred from this ruling that it is always advisable to check the rationale behind municipal policy. Although at first glance it may seem that municipal policy prevents a certain change of use, every (legal) rule must be interpreted.
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.
