Flash drivers caught between shore and ship

In an earlier blog, we wrote about the (im)possibilities of municipalities to act against darkstores. Municipalities, in view of recent case law, seem to be winning the first battle. In Oegstgeest, the court ruled that a darkstore did not qualify as retail, and its use as a darkstore was therefore not permitted. The developments surrounding darkstores follow each other in rapid succession. With a ruling on April 26, the preliminary relief judge of the District Court of Amsterdam (again) threw sand in the engine of flash delivery services.

Activities must be discontinued

Near Westerpark, the applicant operates a flash delivery service. Deliveries are made from that location from a darkstore, as is customary for flash delivery companies. A darkstore is a mini warehouse not accessible to the public from which the delivery of (in this case) groceries takes place. The site is subject to the zoning plan 'Westerpark Zuid'. Supervisors from the municipality found during a visit to the darkstore that the operation of the flash delivery service violated the zoning plan. The applicant was subsequently summoned to cease on-site operations by April 12, 2022. The applicant cannot agree with the above decision, especially since it had been confirmed to it in writing by a senior employee of the municipality that on-site flash delivery service does not violate the zoning plan.

Darkstore no postal service

The building is zoned 'Residential-1' with the function indication 'Specific form of Mixed - 1'. Based on this function indication, the establishment of businesses up to category A is also allowed in the building. According to the applicant, the operation for the purpose of flash deliveries should be understood as 'Post and telecommunications', more specifically 'mail and courier services exclusively being bicycle couriers'. That function was permitted as a "Category A business," according to the zoning plan.

While a flash delivery service may not be a mail and telecommunications company, I don't think it's a crazy notion that a flash delivery service can be compared to this. A flash delivery service works mostly with bicycle couriers who deliver groceries to your home. In addition, there is as yet no perfect fit jacket for a flash delivery service in the State of Business Activities.

The preliminary injunction judge took a different view. First, according to the judge, the flash delivery service is not comparable to a bicycle courier service because the flash delivery service, unlike a mail carrier, operates 24 hours a day. In addition, the nature of the delivery is relevant. In mail delivery, delivery is made from one party, the sender, to the other party, the recipient. This is substantially different in flash delivery, the preliminary injunction judge said. The sending party is missing, the reasoning goes, because the recipient himself chooses a product from the flash delivery service's assortment. The delivery then takes place from a storage/distribution center, and that activity does not appear in the Statement of Business Activities either. In short, in the opinion of the preliminary relief judge, the use as a flash delivery service violates the applicable zoning plan.

Also no retail sales

The preliminary injunction judge's ruling represents a second major blow to flash delivery darkstores. In passing, following the Oegstgeest case, the preliminary injunction judge confirmed that there is no retail business because shoppers cannot physically walk in and out of the darkstore. 

Darkstores risk falling between two stools with the combination of recent rulings. The establishment possibilities of darkstores are severely curtailed when both (part of) business zoning and retail zoning are eliminated as possible locations.

Currently, two more Amsterdam establishments of flash delivery services have received citations on the same grounds to cease operation as darkstores in certain locations. The future will have to tell whether enforcement through the zoning plan holds up, but for now the municipalities are 2-0 ahead.