Roof height, building height and ground level: it's still paying attention

With great regularity it is argued in proceedings that a building is higher than the zoning plan allows. Every architect and builder knows that the zoning plan regulates the permitted height of buildings. Nevertheless, things go wrong with some regularity and it turns out that buildings have been built too high, because the correct level was not used as the starting point.

This then quickly seems like a silly mistake. Yet determining the maximum allowable gutter or building height is often less simple than it seems.

The reason is that for each building plan, the specific zoning plan applicable to it must be looked at. In most zoning plans, Article 2 (method of measurement) indicates how the maximum building height of a building is determined. It is then of course important from which point is measured and to which point is measured.

To what height

Often subordinate building components, such as antennas, elevator shafts and other localized elevations are exempted, but this is certainly not always true!

Level

The question of from what point to measure is more difficult in many situations. Most zoning ordinances specify that measurement is made from the level. However, the level is defined differently in many zoning plans.

Sometimes the elevation of the road in front is important. In other cases, it refers to the existing ground level at the site of a specific designation, the existing ground level at the site of the building, or the existing ground level at the entrance. Still other zoning ordinances lack the word "existing" or refer to the ground level after completion of construction. In situations where there is a sloping terrain and/or a ground level that is higher after completion of construction than in the old situation, discussions often arise about the level and consequently about whether the building plan is too high.

Division ruling of Aug. 8, 2018

The question of whether the building plan is too high was also raised in the decision of the Administrative Law Division of the Council of State of August 8, 2018, ECLI:NL:RVS:2018:2665. In these proceedings, the college had initially denied a requested permit because the gutter height of the requested addition violated the zoning plan. In this zoning plan, the ground level for a structure whose main access does not directly adjoin the road was defined as the height of the terrain at the site of the main access when construction was completed.

On appeal and on appeal, it was argued that the level should be the height of the landing in front of the front door of the house. That landing was accessible by a flight of steps. Based on the landing, the building was consistent with the gutter height included in the zoning plan. The court and the Division did not go along with this and ruled that the landing was a structure that was part of the house. The court and the Division then rule that the ground in front of the landing should be retained as the level. Based on this, the building plan violates the building height allowed in the zoning plan.

Tip

It is important that the architect/builder, when designing the building plan, carefully study the relevant zoning regulations regarding the building height, or have them studied, to prevent a building plan from inadvertently being in conflict with the zoning plan because of the permitted building height. If a building plan is in conflict with the permitted building height, the cooperation of the municipality is needed to still get the building plan permitted. Whether the municipality is willing to cooperate depends on the municipality's policy and the specific circumstances of the case. In the ruling discussed on August 8 of this year, the municipality ultimately granted a permit for the deviation from the gutter height for a slightly modified plan because a higher structure was possible without a permit. That justification, which was contested by local residents, the Division found adequate.

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