Enlarging structure; what is and is not allowed?

Enlarge building

Pursuant to Article 4 paragraph 1 Annex II Bor, it is possible to deviate from the zoning plan to make an accessory building possible. If it concerns a building within the built-up area, the law does not impose any restrictions. However, restrictions may be included in policy rules. An accessory building also includes the extension of a main building, as is apparent from the definition of an accessory building in the Bor.

It follows from a ruling by the Gelderland District Court a few years ago that if the extension is less than 50% of the structure that may be built on the basis of the zoning plan and is being built, it is an extension as referred to in Section 4(1) of the Bor. The Council of State has now confirmed several times that the expansion of a main building can already be directly included in the permit for the realization of the main building. Case law also shows that the expansion does not have to be recognizable as such.

Specifically with regard to dwellings, it is important to note that Article 5 states that when applying Article 4, paragraph 1, the number of dwellings should remain the same. The Council of State has determined that this should be read as meaning that the number of residences may decrease, but not increase. This refers to the planological number of dwellings allowed and not the actual number of dwellings present.

Change of use of structure

Under Article 4 paragraph 9 (changing the use of a building), it is possible to change the use of an existing building to a use that the zoning plan does not allow and to include conversions, insofar as the area and building volume do not increase. In doing so, the adjacent land may also be changed. In this way, the necessary parking spaces, for example, can be realized if the zoning plan did not allow this.

Cumulation

Interestingly, a cumulation of Article 4(1) (expanding a building) and 4(9) (changing the use of a building) is allowed. This makes it possible to change the use of an existing building and expand that building at the same time. For example, consider the situation that in an old office building stores are realized in the plinth and also that plinth is expanded.
What is not allowed is the construction of a new main building for a use that the zoning plan does not allow. For example, Aldi in Wieringerwerf wanted to build a new supermarket. This involved a new building at a location where a supermarket was not permitted. The Division did not follow the argument that the cumulation of Articles 4(1) and 4(9) should make this possible. With this, it is clear that the cramped regulations do not allow the permanent construction of a new main building in deviation from the use permitted in the zoning plan.

In view of the broad possibilities offered by Articles 4.1 and 4.9, it is worthwhile to check carefully, prior to submitting a building application, whether the building plan can be realized with the 'kruimelgevallenregeling'. If the conclusion can be drawn that a building plan can be realized with the exceptional circumstances scheme, the advantages are clear: A short procedure in which less justification is required than with an amendment to the zoning plan or an extensive environmental permit.

Quickscan zoning plan

Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our zoning scan.