With the 'kruimelgevallen' regulation in the Bor (Article 4 Annex II of the Environmental Law Decree, hereinafter Bor), much more can be done than is often thought.
In recent years, there has been much litigation in the Division on the bread-and-butter regulations. It is becoming increasingly clear what can and cannot be done. The many rulings show that there are many possibilities to enlarge buildings and/or change the use of buildings with this regulation. The advantage is obvious: a short procedure and a deviation that can be granted relatively easily.
Enlarge building
Under Article 4(1) Annex II Bor, a building can be enlarged. These possibilities are broad, according to the Division:
- This category is not limited to "planologically subordinate cases. For example, the realization of an elementary school with a size of 55 meters by 25 meters can be authorized with a 'minor case'. Or a complete additional wing of a hospital. Or a substantial expansion of a store.
- Expansion is not limited to the extension of an already existing building. What is important is that the legal concept of "accessory building" is met. That is also the extension of a main building. And that main building does not have to be there yet. What matters is that the main building is permitted under the zoning plan.
- The term "extension" should be interpreted broadly. This means that, for example, it also includes the realization of basements, containing a warehouse, and additions and extensions on higher floors, for example for a staff room.
- The portion where an "extension" occurs does not have to conform to the zoning plan. Keep in mind, however, that the main building itself and its use must be permitted under the zoning plan. It seems to follow from lower case law that at least 50% of the main building must be permitted under the zoning plan for this to happen.
Change of use of a structure
Under Section 4, subsection 9, Annex II Bor (transformation provision), it is possible to change the use of an existing building to a use that the zoning plan does not allow. Simultaneously with the change of function, renovations may be included, as long as the surface area and building volume do not increase. In the process, the use of the adjacent land may also be changed.
Handy to know is that also only the change of use of a contiguous land can be crumbled, without changing the use of the adjacent building. This may be the case, for example, if the desired use of the building is already permitted under the zoning plan or has already been granted a permit. But the adjacent land is needed to realize additional parking spaces.
Cumulative crumb cases
What is interesting for practice is that the two categories can also be combined. For example, it is possible to change the use of an existing building (paragraph 9) and simultaneously realize an extension (paragraph 1). For example, an example telling in everyday life is the transformation of an old existing office building into apartments, where stores are realized in the plinth and that plinth is also expanded.
Demolition/new construction to crumble?
In practice, the question has been raised for some time as to whether it is also possible to crumble a demolition/new construction situation. The Division has now issued two rulings on that question, from which some limits can be derived.
- For example, the Aldi in Wieringerwerf was unable to realize a new supermarket with a cumulative "crumb" case. The plan involved a new building at a location where a supermarket function was not allowed under the zoning plan. That, according to the Division, is not 'crumbly'. It is not permitted to permanently construct a new main building in deviation from the use permitted in the zoning plan.
- A permit had been applied for in Oudewater for the demolition and new construction of a commercial building. The new commercial building would consist of two floors, with the first floor becoming commercial space and the second floor to be used entirely as independent office space. Use as independent office space violated the zoning ordinance. On this, the Division indicates that it is not possible under section 9 to grant a permit for the use of a building in deviation from the zoning plan that is not actually present and licensed.
Conclusion
The jurisprudence of the Division shows that the 'kruimelgevallen' regulation offers many possibilities to (combined) permit a (substantial) expansion, a change of use of a structure or the change of use of only a contiguous terrain with a short procedure. The Division does set limits, but be inspired by the possibilities!
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