Do church and surfing go together?

Whereas the Rotterdam District Court annulled decisions to convert part of the Steigersgracht in Rotterdam into a water sports area with a golf generator, catering facilities and outbuildings because the requirement of good spatial planning had not been met, the Administrative Law Division of the Council of State ruled differently in a ruling today (ECLI:NL:RVS:2017:2904).

Experience church and monastery

In the immediate vicinity of the water sports area to be realized is a church and a convent of the Dominicans. Visitors to the outdoor terrace at the catering establishment and spectators who will loudly cheer surfers could disturb the peace and modesty associated with the church and monastery, for example during a funeral. In all reasonableness, therefore, the municipality could not consider the combination of the project and the church and monastery to be in accordance with the requirement of good spatial planning. In doing so, the court also pointed to the acoustic study that took as its premise that people on the outdoor terrace will not shout but scream and that no more than 50% of the audience will shout at the same time. It was insufficiently substantiated that this assumption could be met with rules of conduct.

The Division (nuanced) rules otherwise.

Policy space and objective standards

As invariably, the Division begins by stating that municipalities have policy freedom in deciding whether to grant planning cooperation. The functions water sports and church are, according to the municipality, compatible in view of the location in the inner city of Rotterdam in combination with a noise level in noise-sensitive space or accommodation of at most 35 dB(A) 24-hour value. The Division rules that this starting point is not unreasonable.

It does then add that a condition should have been attached to the permit, also because of the promoter's willingness to accept it. That condition should prevent activities in the water during announced funerals.

So things seem to be going well, but then they still go wrong.

Noise and good spatial planning

The standard of 35 dB(A) indoor value is an objective standard and reports can show whether it is met. But then it should not be forgotten that under the Activities Decree, the noise of visitors' voices in the open air - i.e. on the water and the outdoor terrace - is not taken into account in the assessment. A report demonstrating compliance with the Activities Decree is not enough. Indeed, the voice noise must be taken into account when deciding on the spatial acceptability of the activity.

The acoustic study further revealed that noise protection measures did need to be taken for a number of homes. The discussion about the starting points of the acoustic survey (how many people are shouting and how many people are shouting) was settled by the Division by ruling that the municipality was not obliged to assume a worst-case scenario, but must base the assessment on representative starting points. To add that it is plausible that the operator can sufficiently correct shouting and screaming people to prevent exceeding an indoor level of 35 dB(A).

Representative situation

It is good to know that an assessment should be based on representative assumptions and not on a worst-case scenario. This at least applies to an acoustic assessment. In other situations, it is still sometimes necessary to assess on worst-case scenarios (maximum planning possibilities). It is not entirely clear when the Division is satisfied with a representative filling, or when a worst-case scenario must be assessed. It seems like a two-stage rocket: first look at what maximum activities are allowed and then what constitutes representative infill, but it is not entirely clear.

Things then go wrong anyway because the municipality has to admit that it did not include the voice sound in the assessment. Pending the proceedings, the municipality did so after all, by presenting a new acoustic study in combination with a different solution for guaranteeing the interior values of homes and church. Instead of measures on the facades of a number of houses, a canopy is to be built to shield the noise in such a way that these measures are no longer necessary. Acoustically a fine solution, but the counterattack that the appellants launched on this with the negative advice of the building standards committee in hand, the municipality could no longer parry. The municipality had passed the negative aesthetics advice for the canopy with the consideration that noise reduction was more important than maintaining a view of the water, but the Division cannot be satisfied with that. After all, the fact was that even without a canopy there was a solution to the noise problem, so that there was insufficient justification as to why the aesthetics recommendation could be overruled.

Lock

For now, there will be no surfing on the Steigersgracht in Rotterdam, but it does not seem impossible that the project will still be licensed. In the meantime, legal practice has learned some new lessons, including the lesson that church and surfing can best go together.