Amended building plan application must be reviewed against new zoning plan

The March 22 decision of the Administrative Law Division of the Council of State (hereafter: the Division) shows that when an application is amended at the objection stage because a conflict with the zoning plan in force at the time the application was submitted has been established, that application must still be tested against the zoning ordinance or zoning plan that came into force after the original application and before the amendment, when making a decision on the objection.

It follows from case law that the main rule is that a decision on an objection must be tested against the law as it applies at the time the decision is made (the so-called ex nunc test). This is different if, at the time the application for an environmental permit (building activity) was submitted, the building plan was in accordance with the zoning plan in force at the time, and at that time neither a preparatory decision nor a draft for a new zoning plan had been made available for inspection with which the building plan was in conflict. In that case, the application must be tested against the zoning plan in force at the time of the application in the decision on the objection (the ex tunc test).

Minor change application

It regularly happens that during an objection procedure it is concluded that an environmental permit initially granted for the activity of building is nonetheless in conflict with the zoning plan. Often an attempt is then made to remove this conflict by amending the original application.
to remove the conflict with the zoning plan. If these changes are of a minor nature, no new application is required, according to established case law of the Division. Because no new application needs to be submitted, this can prevent the applicant from still being confronted with a preparatory decision or draft zoning plan that came into effect after the primary application, in which this building plan may have been zoned and may no longer be permitted.

Review of new zoning plan

The March 22 ruling concerned an application for an environmental permit (building activity) for a hypermarket. In a September 9, 2015 ruling, the Division had already concluded that the application initially made was not in accordance with the zoning plan in effect at the time. As a result of that ruling, the developer amended the application. Those amendments were intended to eliminate the conflict with the zoning plan in effect at the time of the original application.

Prior to the amendments, however, the Eeserwold management ordinance came into effect. Because the municipality felt there was a minor change, it reviewed the amended application only against the zoning ordinance in effect at the time of the original application.

The ruling of March 22 shows that in that case the exception that the zoning plan in force at the time of the decision on the objection must be reviewed instead of the zoning ordinance in force at the time of the application cannot be invoked. This is because the application may only be reviewed in objection against the zoning ordinance in force at the time the application was submitted if that application was already fully in line with the zoning plan at that time.

Thus, modifying the application (in a minor way) at the time of the objection stage to remove the conflict with the zoning plan cannot prevent the need to still test against an administrative order or zoning plan that came into force after the application and before the modification.

Explaining previous application

Should there be an application whose compliance with the zoning ordinance is questioned on objection, it is advisable to clarify that application whenever possible and thus not simply amend it.

A previous ruling by the Division (ECLI:NL:RVS:2015:3421) shows that it is possible to clarify at a later time, by means of an explanation, that an earlier application fitted within the zoning plan in force at that time. Because there is no question of an amendment and the application then always complied with the rules of the zoning plan, the rules of the zoning plan applicable at the time of the original application can then simply be reviewed.

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