Ladder test, when is there new urban development?

With great regularity, it is argued in proceedings that "the ladder test" has not been performed properly. This refers to the ladder for sustainable urbanization in article 3.1.6 of the Bro, which is a guideline for municipalities in regulating functions. Most provincial spatial regulations also include provisions to this effect.

In discussions regarding the ladder and/or such provincial regulations, the first question to be answered is whether there is new urban development. Two decisions by the Administrative Law Division of the Council of State ("the Division") last April 12 focused on when there is new urban development.

Bleiswijk ruling (ECLI:NL:RVS:2017:1017)

In this ruling, the Division first addresses the question of when there is a new urban development within the meaning of the ladder (3.1.6 Bro). In doing so, the Division refers to its ruling of August 31, 2016 (ECLI:NL:RVS:2016:2364). In this ruling, it ruled that for the question of whether a new urban development as referred to in Section 3.1.6(2) of the Bro is provided for, it must be assessed - in conjunction with each other - to what extent, compared to the previous plan, the new zoning plan provides for a change of function and what use of space in the new zoning plan is made possible compared to the previous zoning plan.

In the issue in Bleiswijk, the old zoning plan had two pieces of land zoned for retail on which construction was also allowed. As a result of the method of zoning, it was not possible to expand the existing supermarket with a large parking lot at ground level, but it was possible to expand two smaller stores with their own parking lots. In the new zoning plan, only 1 strip of land was zoned for retail, but it was allowed to park on a large portion of the site for the purpose of retail. In effect, this provided the opportunity to expand an existing supermarket in a way that was not previously possible.

The Division rules that under these circumstances the new zoning plan does not provide for new building possibilities for the purpose of retail trade compared to the current zoning plan. By doing so, the Division makes it clear that clustering of buildings on a site in a way that was not previously allowed, but does not, on balance, lead to a larger land take, is not a new urban development within the meaning of the ladder (Article 3.1.6 second paragraph of the Bro).

Next, the Division gives an opinion on the relationship between the Regulation on Space of the Province of South Holland and the ladder. Since that ordinance does not include its own definition of the concept of new urban development (despite the fact that it does include a definition of "existing use"), the Division rules, following its ruling of August 24, 2016 (ECLI:NL:RVS:2016:2316), that the concept of new urban development must be interpreted in the same way as in the "ladder test" of Section 3.1.6(2) of the Bro. As this case does not involve new urban development within the meaning of Section 3.1.6(2) of the Bro, the relevant sections of the provincial ordinance do not apply.

Ekkersrijt ruling (ECLI:NL:RVS:2017:1028)

In this ruling, the Division ruled that there was a substantial change of use, because in the old zoning plan the plots in question had a business zoning and that function was changed to peripheral retail. Merely this change of function means that, in the opinion of the Division, there is a new urban development, even if there would be no increase in land take.

The fact that the previous plan contained an amendment authority for peripheral retail is irrelevant, according to the Division. After all, an amendment authority only provides the possibility to change an existing zoning. The old zoning plan itself did not provide for such a change of function.

Conclusion

Thus, 2 clear conclusions can be drawn:

1. Clustering existing opportunities on a larger site is not new urban development, even if it actually allows a larger store to be realized.
2. A single substantial change of function does result in new urban development, even if there is no new occupation of space.

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