Art. 4 of Annex II of the Environmental Law Decree contains a possibility to grant an environmental permit with a short preparatory procedure for a roof structure or a similar extension of a building in deviation from the zoning plan. The Administrative Law Division of the Council of State ruled in a ruling on Aug. 5 that this authority can also be used to grant an environmental permit for the construction of new dwellings on the roof of an office building. This seems like good news, but it also seems that this conclusion is a bit too short-sighted.
Room for maneuver
Section 4 Annex II Environmental Law Decree (hereinafter: Bor) is also known as the crumb regulations or the crumb case list. However, what can be authorized with that provision goes considerably further than just some crumbs. For example, expansion of a main building by hundreds of square meters may qualify as an accessory building that can be permitted through the crumb regulations.
The bread-and-butter regulation is popular. An environmental permit based on that article is prepared using the regular preparation procedure. As a result, such an application is completed within a relatively short period (8 weeks, extendable once by 6 weeks) and the environmental permit is obtained by operation of law if a decision is not made in time.
Prohibition of increase in housing
However, the scope of Article 4 Annex II Bor is not unlimited. For example, Section 5, subsection 1 of Annex II Bor prescribes that when applying Sections 2,3 and 4, the number of dwellings must remain the same, in which case this restriction in turn does not apply to the realization of an accessory building for housing in connection with informal care and Sections 9 (transforming existing buildings) and 11 (temporary deviation).
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Roof structure or similar extension of a building
With art, 4, section 4, in deviation from the zoning plan, an environmental permit can be granted for a dormer, roof structure or similar extension of a building or the extension of a structure with a building part of a subordinate nature.
There is now quite a bit of case law on the application of this power for the purpose of a roof structure. For example, it has previously been ruled[1] that departing from the zoning plan to permit an extra floor on a dwelling qualifies as a roof structure within the meaning of this article. It need not then be a building component of a subordinate nature. The additional floor could therefore be authorized using the short regular procedure.
In the ruling of August 5, 2020, the Division ruled that eight completely new dwellings can also be realized on an existing building using this authority. In doing so, the Division again considers that in order to realize a roof structure, it need not be a building component of a subordinate nature.
Increase in number of housing units?
However, as mentioned above, because of the provisions of Article 5, first paragraph of Annex II Bor, the number of dwellings may not increase with the application of Article 4, Section 4. Case law on this article shows that this must be assessed from the planning possibilities. Or as the Division puts it:
"As the Division has previously held, in order to determine whether the number of dwellings remains the same as referred to in Section 5(1) of Annex II of the Bor, it is not the actual situation, but the building possibilities offered by the zoning plan, that must be adhered to."(ECLI:NL:RVS:2018:4079)
This is a location for which the zoning plan regulates that within the zoning 'center-1', housing above the first floor is allowed if the land has the designation 'residential' on the map. This plot does not have that designation. Therefore, based on the zoning plan, no dwellings are possible on the site.
One could therefore say that the number of dwellings possible from a planning point of view is currently 0 and that with this deviation 8 new dwellings are made possible. So this does indeed increase the number of dwellings, also in planning terms. Given these facts, the August 5 ruling is inconsistent with the Division's existing case law. It may be due to the method of litigation, but it would certainly not have been superfluous in this case if the Division had paid explicit attention in the ruling to whether or not Section 5(1), Annex II of the Bor Bor is applicable.
Add homes
For developers and other initiators it is important not to count yourself rich with this ruling. It seems to follow from this ruling that it is possible to add extra dwellings by means of Article 4, Section 4 with a roof structure. That possibility, however, is limited by Section 5, subsection 1, Appendix II of the Environmental Law Decree and the building and use possibilities offered by the current zoning plan.
In my opinion, it remains true that with a roof structure, based on the rules for additional space, no more dwellings can be realized than the number of dwellings allowed by the zoning plan. The addition of dwellings is possible, however, if no maximum number of dwellings can be derived from the building options and usage rules of the zoning plan.
[1] ABRvS March 15, 2017, ECLI:NL:RVS:2017:702.
