New office concepts: a different use and expansion licensed within 8 weeks

In practice, there is often a need for opportunities to transform vacant buildings or part of a building to another function. Or, on the contrary, to bring different functions together. The legislator has tried to introduce a quick procedure by which this type of transformation can be quickly authorized. Often, however, there is a need to immediately (limited) expand the building to be transformed as well. The question is whether the law also allows this with a fast procedure.
The Administrative Law Division of the Council of State provided that clarity in two rulings on March 22 and 29, 2017. It is possible!

Legal regulation for transformation and expansion

In the Netherlands, real estate is traditionally divided into retail (stores), hospitality, offices, businesses and residential. In zoning plans, these functions are also specifically assigned to a location. For example, by placing the zoning 'office' on a location, which means that other uses - such as retail or hospitality - are not allowed at that location.

It is possible to obtain a different use permit with a (short) procedure of 8 weeks. Section 4 of Annex II of the Environmental Law Decree ('the 'minor cases regulation') stipulates that an environmental permit can be granted for transforming (changing a function) an existing building contrary to the zoning plan. In doing so, building activities may be carried out, but the built-up area or building volume of the structure may not be increased.

Initially, this possibility was mainly intended for transformation of vacant office buildings, as the vacancy rate there was increasing rapidly as a result of the crisis. Office buildings lent themselves well to transformation into student housing, for example, according to the legislator. For example, a former office location of the Department of Public Works in Arnhem is currently being transformed into 296 student homes, exactly as the legislator intended.

But the provision looks at any other possible function. And thus also a transformation to precisely an office function. For example, the transformation of a disused water tower into new office space. Or the use of (part of) an office location or former restaurant for the establishment of retail. Also newly emerging office concepts, where in office towers nowadays there is also the desire to use spaces for the establishment of a nursery, hairdresser or catering business can be licensed with this short procedure.

However, the practical problem lay in the fact that with this short permit procedure, the built-up area or building volume may not be expanded. When transforming, for example, a former restaurant into a store, there is often a need to expand that existing structure, for example with a warehouse. Or when transforming into an office function, there is an immediate need to add a bicycle storage facility to the existing building.

Such an expansion is, however, possible under another part of the "minor cases" regulation. Namely, that part offers the possibility - in short - to expand a main building.

The legal question was whether these separate components could be combined in one permit or whether this would interfere with the legal system. Indeed, the "transformation provision" gives the clear condition that expansion is not possible with that provision. The practical difference is clear: is a permit obtainable in the short term or is it (as in the past) still subject to a long and extensive procedure, which also requires a number of additional investigations.

Case law is clear: a combination is possible

In March and August 2016, the courts of Zeeland-West Brabant and Midden-Nederland, respectively, ruled that it follows from the parliamentary history that the legislator intended that this combination should be possible. The Division confirmed this in its decisions of March 22 and 29, 2017.

The ruling of March 22, 2017 (ECLI:NL:RVS:2017:744) involved a granted environmental permit for the use of a structure for stacked habitation and simultaneous expansion of the first floor of the building. This can be granted within 8 weeks, according to the Division, using the "bread-and-butter" rule.

The ruling of March 29, 2017 (ECLI:NL:RVS:2017:819) involved a granted environmental permit for the transformation of a water tower into an independent office building in Mijdrecht with a simultaneous extension for an emergency stairwell and elevator. That, too, can be licensed within 8 weeks, according to the Division.

Conclusion

With these rulings, the Division confirms that the "minor cases" regulation allows a lot. Changing the function of (part of) an existing building, while at the same time wishing to expand, can be authorized within 8 weeks and is not contrary to the legal system. The realization of new office concepts, combining different functions in a building, is also possible with this procedure.

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