No new parking requirement with infill shell structure

On April 5, 2017, the Administrative Law Division of the Council of State (further: the Division) ruled in a final ruling on a granted environmental permit for a cinema in Eindhoven after years of proceedings.

This ruling is worth noting, because the Division clearly reiterates its case law regarding parking requirements and possible parking problems. Even if that might lead to a significant parking shortage around the cinema.

Parking needs must be assessed when granting (building) permit

When an environmental permit is granted to build a structure, it must also always be assessed whether sufficient parking is provided. It is established case law of the Division that only the increase in parking needs resulting from a building plan must be considered in this regard. Existing shortages do not have to be resolved.

The cinema in Eindhoven: what was going on?

What was going on in Eindhoven? In 2007, an exemption had been granted from the then current zoning plan (for the use) to allow for a cinema on site. A building permit was subsequently granted in 2008 for the construction of a building, with a number of future functions included on the application including leisure. The application further included a shell (bare) drawing of the portion of the property in which the cinema was envisioned.

Things then remained quiet for several years. In October 2014, the plan is taken up again and an environmental permit is granted to convert the second floor of the Admirant building into a cinema.

In the subsequent objection and appeal procedures, the issue (mainly) is whether sufficient parking is provided at the cinema. Indeed, according to the appellant (a competing movie theater), that parking requirement of the new movie theater is a minimum of 190 and a maximum of 380 parking spaces, which is not and cannot be provided for.

Department: parking requirements must also be assessed in a shell application

In this ruling (ECLI:NL:RVS:2017:918), the Division strictly adheres to its established case law and rules strictly legally. Since a building permit was granted in 2008 for a building, which included the leisure function (which includes a cinema) in the application, 2008 was the time when the parking requirement had to be assessed.

The Department rules sharply:

The question of whether the building plan provides adequate parking must have been assessed in previous decisions.

Therefore, the Division concludes that there is no increase in parking needs. In 2008 the cinema was (already) licensed and in 2014 only a renovation was requested. Whether in 2008 the parking requirement was actually assessed seems (strongly) questionable, but the Division is clear.

So the ruling shows that there is only one point at which parking requirements can be assessed: when assessing an environmental permit to build, naming the use. So this applies even if it is only a shell application.

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