Once a brothel, always a brothel?

A ruling by the Administrative Law Division of the Council of State on January 24, 2018 (ECLI:NL:RVS:2018:203) once again clearly shows that a municipality must respect existing (licensed) rights. This is because the basic principle is that a municipal council must designate existing legal use as such in a zoning plan. Yet this is by no means always done.

What was going on?

This ruling concerns a zoning plan in The Hague, for an area where the activity of (window) prostitution is leading. An owner of a prostitution establishment appealed against this zoning plan, because he believed that five working rooms in his premises had wrongly not been zoned as such in the zoning plan.

On the other hand, the City Council states that for the purpose of a zoning plan already adopted in 2000, research was conducted into activities on site. To that end, an inventory list was drawn up, based on the actual situation at that time and indicating the number of showcases and workrooms present within the plan area. That list was part of the old zoning plan and it did not list the operator's workrooms. The old zoning plan included a prohibition on further expansion of prostitution activities.

In these proceedings, the City Council argues that the inventory list should be used as the basis for assessing the new zoning plan and the possibilities it contains. Any events and permits granted before 2000 are no longer significant, according to the city council.

Old permits still significant?

The Department disagrees with the City Council's position. In fact, it appears that permits had already been granted for these premises in 1985 and 1987, which had never been revoked. Based on those permits, the operator obtained another permit in 2004 for the conversion of the premises - which also covered the five workrooms. That renovation was subsequently completed and the workrooms were put into use. According to the Division, this means that the workrooms were legally realized.

The city council then countered that the permit granted in 2004 only covered the conversion of the premises into a brothel and not the use of the workrooms that had been realized. That use therefore remains prohibited, according to the city council.

Existing legal uses to be positively zoned in principle

The Division also disagrees with this position of the City Council, citing its established case law. The prohibition of use included in the 2000 zoning plan cannot be held against the operator. After all, the operator has an irrevocable environmental permit for (re)construction, which expressly includes the intended use - even if it violates the use prohibition. This permit provides a claim to use the licensed structure in accordance with the purpose for which it was erected. Therefore, the city council should have allowed this use.

Note: 'in principle' positive zoning

The Division does point out (correctly) that existing legal use must "in principle" be zoned as such. If new planning insights give rise to this and the interest in the intended new zoning outweighs the established rights and interests, this may be dispensed with for the sake of good spatial planning. In that case, the existing legal use can be brought under transitional law, provided the council makes it plausible that the use will be terminated within the planning period. After all, the purpose of transitional law is to bridge a temporary situation.

In this case, however, according to the Division, the municipal council has not properly considered why the lawful existing use has not been zoned as such, nor provided any substantiation on the basis of which it must be deemed plausible that this use will be terminated within the planning period of ten years. This leads the Division to annul the regulations in the zoning plan as included for the operator's premises.

Conclusion

This ruling shows once again that a city council does not always correctly translate the permitted use into a zoning plan. Therefore, always be alert to whether your (permitted) rights are correctly incorporated into a zoning plan.

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