It is established case law that a higher normal social risk of 5% is in principle applied to plan damage caused by housing development on an infill location. In its June 12 ruling(ECLI:NL:RVS:2019:1892), the Division itself established a higher normal social risk for plan damage resulting from housing development on (largely) an infill location.
Plan damage
The adoption of a planning decision can cause damage because the value of real estate may decrease due to permitted developments in the immediate area. Such plan damage may be eligible for compensation by the government. However, there are many cases where the government has passed on that obligation to the initiator.
Normal social risk
The law stipulates that at least the portion of the plan damage equal to 2% of the value of the immovable property before the planning decision comes into force remains the responsibility of the owner. This is called the "normal social risk.
This normal social risk only applies if there is planning damage due to developments in the vicinity. Therefore, this does not apply to planning damage caused by changing the zoning of one's own parcel.
This legal minimum can be deviated from by setting a higher normal social risk. This is happening more and more often.
5% normal social risk in infill development
It has been established case law for some time now that the Division applies a normal social risk of 5% for residential development on infill sites, provided that the residential development was in line with expectations, fits within the spatial structure in terms of its nature and size, and fits in with the planning policy pursued over a number of years. It was also already clear that the normal social risk of 5% can be applied if an infill location also has characteristics of an expansion location.
Increased normal social risk at expansion site
In the June 12 case, the Division explicitly ruled that even in the case of housing development on (mostly) an expansion site, there can be a higher normal social risk.
In this case, the consultants and the college assumed the legal minimum of 2% normal social risk. The college had arrived at that opinion because, in its view, there was no concrete policy within which this housing development would fit and, moreover, the two houses to be realized did not fit within the spatial structure of the existing buildings. On top of that, according to the college, given the distance from the applicant's home, the impact on the living environment would be noticeable to a great extent. On that basis and taking into account the amount of damage, the damage does not fall entirely within the normal social risk and is limited to the legal minimum, the college said.
The Division disagrees. The Division establishes that housing development in a residential nucleus must in principle be seen as a normal social development and that this development fits, at least in part, within the policy pursued by the Municipality. The Division bases this on the previous zoning plan, in which this parcel had the designation "extensification area residential", with the result that in the event of a reduction of agricultural activities within the area or for the purpose of spatial quality gain, the construction of an additional dwelling was possible. Moreover, for this specific building plan, the well-known "space-for-space regulation" has been used, which the Division finds sufficient concrete policy to qualify this housing construction as lying in the line of reasoning.
Department sets normal social risk itself
What stands out next is that the Division does not refer back to the municipality, but instead directly determines and justifies itself the normal social risk to be applied.
The Division ruled that the normal social risk should be 3% (and not higher) because it is largely an expansion site that previously had an agricultural zoning and therefore it was not in line with expectations that the residential development would take place precisely here. Moreover, the Division takes into account the low building density of surrounding land, the relatively small size of the existing buildings in the immediate vicinity and the relatively small distance between the detached houses and the property of the planning damage applicant. As a result, the Division ruled that the development does not fit within the existing spatial structure of the surrounding area.
Since housing development can in principle be considered a normal social development, which at least partially falls within the policy pursued by the municipality and does fit into the spatial structure in terms of its nature, the normal social risk is set at 3% instead of 2%.
Effects of ruling
This ruling is quite special because it is clearly ruled by the Division that residential development on an expansion site can also be a development that should be considered normal social development.
The standard which the Division then applies to apply a higher threshold is not very strict. It contents itself with fairly general policy rules such as the "space-for-space regulation" and also looks for a connection to an old zoning plan in terms of the policy pursued by the municipality, even though that zoning plan in itself did not immediately permit this development.
It is also noteworthy that while the Division continues to state that, in principle, it is up to the Municipal Executive to determine the level of the normal social risk, it tests this very intrusively and, if necessary, subsequently determines it itself. Thus, if the Division has sufficient information, the Division will determine the normal social risk itself, instead of referring back for a new decision by the Board.
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