A municipal council enjoys great freedom when adopting zoning plans and the uses they include. With some regularity, litigation ensues over alleged municipal (official) commitments that should lead a municipal council to allow a particular development.
Practice shows that a municipal council is not easily "required" by the Administrative Law Division of the Council of State (the "Division") to have to decide on a specific development. In that light, a Division ruling from March 24, 2021, is interesting. In this ruling, the Division leaves a municipal council only (very) little room not to offer the possibility of housing development, or at least the prospect of a damages claim hanging over the municipality's head if it does not decide to do so.
What was going on?
As early as 2008, the Enkhuizen City Council drew up a plan for housing construction on the west side of Enkhuizen. Specifically, a zoning plan was drawn up for this purpose, which includes a development obligation that would allow for the construction of up to 700 homes. Until this plan is developed, no construction is allowed within the area.
Within the designated area is an agricultural company, whose operator at some point requests the City Council to adopt a plan that would actually allow for residential development. Some procedural aspects aside, the City Council ultimately decides to refuse to develop the plan. The City Council indicates that another plan will be adopted.
Commitment to allow housing development, but not to be realized in the short term
The company argued before the Division that the Municipal Council could not (any longer) refuse to allow housing development. The city council has allegedly promised several times that housing will be built on the site and has also mentioned a concrete date, which has since passed.
On the other hand, the City Council argues that it does not want to cooperate, because such an elaboration is not feasible in the foreseeable future. Land acquisition negotiations have come to a standstill and the municipality is not prepared to proceed with expropriation in the short term. In addition, the municipal council wants the first building to be built adjacent to the existing building. The agricultural business is located at a considerable distance from it. Any residential construction on the farm's land could therefore not be considered until at least 5 years from now at the earliest. In addition, there is no initiator for possible residential construction and the city council states that the operator of the company would not be able to do so himself, since the necessary experience is lacking.
Principle of trust: specific promise and legitimate expectation raised
The Division (correctly) starts its assessment with the question of whether a concrete promise was made to the company that housing development would be decided, an assessment of whether there is a so-called successful reliance on the principle of trust.
The Division does not readily adjudicate a successful reliance on the principle of reliance, but it does so here. In previous proceedings, the city council promised (repeatedly and without reservation) that a development plan (for housing development) would be adopted, and the city council also attached a concrete date to it.
As a result, the company was therefore justified in relying on the adoption of a development plan providing for residential development on their land.
Choice: housing construction or not
The fact that legitimate expectations exist does not mean that they must always be met. More weighty interests, such as the public interest or the interests of third parties, may stand in the way.
The Division notes in these proceedings that the City Council based its refusal largely on (only) a temporal aspect. It has not been sufficiently demonstrated that it is not possible to proceed to an elaboration of the allocated residential zoning. According to the Division, if a concrete infill is not yet possible, the municipal council could also have opted for a global plan.
Given the long past history and the long uncertainty the operator is in regarding the permitted use on his land, the city council should (now) have made a choice: do we want to allow housing development on this site or not? Further postponing that choice is not (anymore) considered acceptable by the Division.
City council required to allow housing development?
The Division therefore (again) instructs the city council to make a new decision on whether or not to allow housing development. However, the Division does give a clear signal: only on the basis of changed planning insights that are necessary for this purpose and after weighing up all the interests involved, including the interests of the operator, can a decision be made to reject the request to adopt a plan that provides for housing.
If the City Council decides to reject, the Division indicates that the City Council must then examine whether and, if so, to what extent compensation should be offered to the operator in particular because justifiable reliance could be placed on the possibility of housing development.
However, the Division also explicitly points out that the municipal council can make a different choice. The city council is also free to (still) make housing development planologically possible, if the city council believes that housing development may still be an issue in time.
The Division's method of wording (indicated above in italics) seems to indicate that the Division gives the City Council little room (anymore) to not still allow housing development on site.
Conclusion
The Division does not readily rule that there is legitimate expectation, which affects the content of decisions of a municipal council. However, if within a municipality there has been a (permanent) intention to transform for a long time and this is (accountably) repeatedly confirmed, the Division seems with this ruling to limit the 'freedom' a municipal council has to (still) refrain from those plans quite a bit, at least not without a lurking claim for damages.
Arjan Loo is a lawyer in the Environment and Government section at Poelmann van den Broek attorneys in Nijmegen. For questions or comments, Arjan Loo can be reached at a.loo@pvdb.nl or on telephone number 024 - 381 14 04.
