In a November 14, 2018 ruling(ECLI:NL:RVS:2018:3721), the Division ruled that a gas station fits within the "retail" zoning. So far, nothing new. In this case, however, the Division chose not to test exceptively against the Standard for Comparable Zoning Plans 2008 (SVBP) and the Spatial Planning Standards Regulations 2008, but instead only to look at the zoning plan itself. Thus, the plan map and plan rules continue to determine what is permitted.
Gas station: retail or business?
In this case, the college granted an environmental permit for the construction of an unmanned service station, on land zoned "retail."
A competitor - the appellant in this case - disagrees with this decision, arguing that a gas station would only be allowed under the zoning "business" with function description "point of sale of motor fuels." This follows from the SVBP, which contains standards applicable to the design and layout of zoning plans and aims to construct and display them in a comparable manner. Pursuant to the 2008 Zoning Standards Regulations, a zoning plan must be laid out in accordance with the standards in the 2008 SVBP.
In his notice of appeal, the appellant therefore in effect asks for an exceptive review of this regulation, in which the environmental permit procedure is not merely reviewed against the applicable review framework from the Wabo and the zoning plan, but a look-through to the regulation with underlying standards from the SVBP.
Building plan fits within retail zoning
At first instance, the court ruled that the construction plan for the gas station fits within the "retail" zoning. In fact, the gas station meets the definition of retail as set forth in the zoning ordinance.
In doing so, the court noted that the SVBP is not a generally binding regulation and the zoning plan already has formal legal force. Therefore, according to the District Court, it is not contrary to legal certainty that a gas station can also fall under the definition of retail, despite the fact that in the SVBP it is classified under the definition of business. In other words; the District Court sees no reason to disapply the article in the plan rules in which the concept of retail trade is included, by way of exceptive review due to conflict with the SVBP.
SVBP cannot detract from independent meaning of plan rules
The Division largely concurs with this court ruling. Indeed, the Division also assumes that the zoning as indicated on the zoning map and the associated planning regulations are decisive for the answer to the question whether a building plan is in conflict with the zoning plan. In principle, the standards from the SVBP cannot detract from the independent significance of plan rules.
In this context, the Division notes that pursuant to the 2008 Spatial Planning Standards Regulations, a zoning plan does have to be designed in accordance with the standards in the SVBP.
Next, the Division finds that the description of the term "retail trade" in this zoning plan corresponds to that in the SVBP. To that extent, therefore, the zoning plan has been designed in accordance with the standards in the SVBP. "For this reason alone, there are no grounds for a declaration of non-bindingness due to conflict with the Dutch Zoning Ordinance (Regeling standaarden ruimtelijke ordening 2008), irrespective of whether there is room for this in view of what has been considered in Section 6," said the Division. With the latter it refers to the independent significance of planning regulations, to which the standards of the SVBP in principle cannot detract.
No exceptive review, plan rules decisive
To determine whether a building plan fits within the zoning plan, the plan map and the definitions in the plan rules remain decisive. A gas station may therefore be permitted within the "retail" zoning. The fact that the standards for uniform zoning plans state otherwise does not alter this. Indeed, the Division does not appear (for the time being) to want to engage in an exceptive test against the SVBP and Regeling standaarden ruimtelijke ordening 2008.
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