The concept of "urban development project" has occupied minds for some time. After all, if there is an urban development project, it has major implications for the procedure by which an empty building can be transformed. In its July 18 ruling, the Division made it clear that even a proper change of function need not qualify as an urban development project.
Substantial change in function
The July 18 ruling(ECLI:NL:RVS:2018:2414) involved a transformation of a vacant commercial building on an industrial estate. The initiator wanted to establish a leisure center there, including catering activities, a children's playground and bowling alleys. For the purpose of that plan, among other things, the number of parking spaces had to be significantly expanded. The built-up area, some 2,500m2, would not be expanded.
As a result of this development, the on-site use would "change color," from business park to culture and recreation and hospitality. Because this use was contrary to the zoning plan in force, the initiator requested the college of the Municipality of Ede to deviate from that zoning plan. The so-called "kruimelregeling" was applied. This is only possible with regard to changing use if it is not an urban development project.
[campaigns]
Consequences of qualifying as an urban development project
In fact, if there is an urban development project, a more extensive and longer procedure must be applied. But when is an urban development project?
The concept of "urban development project" has existed for some time and is included in the EIA Decree, which regulates in which cases an EIA (assessment) obligation applies. For some time now, this concept has also been of importance for the 'ruimelregeling', because that regulation may not be applied to a change of function if it concerns an urban development project. In order to interpret this concept, the case law initially seemed to follow the concept of urban development as we know it from the ladder for sustainable urbanization.
Case law Department
Regarding the urban development project, until now the Division had mainly ruled on situations in which one form of retail was converted to another form of retail. In its rulings of January 31 last(ECLI:NL:RVS:2018:348) and April 18 last(ECLI:NL:RVS:2018:1297), the Division ruled that this did not constitute an urban development project. I previously wrote this blog about one of those rulings. The Division considered it important that there was already retail trade and that this did not change as a result of the environmental permit.
Factual impacts and planning comparison
In this case, however, there is a clear change of function. Therefore, the appellants argued that the environmental consequences would differ significantly from the existing use. In this regard, the appellants further argued that the use to be licensed should be compared to the last existing use and thus not to all the planning possibilities already present.
The Division finds that this case also does not constitute an urban development project. The Division rules that the environmental consequences will not be such that the project must be regarded as an urban development project. What is striking is that the Division follows the possibilities already offered by the zoning plan. Therefore, the Division does not refer to what is or was actually present on site, but to the planning situation.
This is striking, because the concept of urban development project comes from the same law in which the EIA (assessment) duty is regulated, and the EIA (assessment) duty does follow the actual situation, including the autonomous development.
The Division therefore rules otherwise. In answering the question of whether there is an urban development project, it compares the functions already permitted under the zoning plan with the function to be permitted. Thus, the Division apparently opts for a planning comparison.
No parallel with urban development
This ruling makes it clear that even a substantial change of function, even if the use "changes color" and is fairly extensive, need not be an urban development project. The line to be derived from previous case law of the Division that the Division would (partly) follow the concept of urban development of the Spatial Planning Decree is also abandoned with this ruling.
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.
