Opening for permanent occupancy of recreational homes

In a ruling today, the Administrative Law Division of the Council of State allowed permanent occupancy of the Zuiderzee op Zuid recreational apartment complex built in 2010.

The complex of 157 luxury apartments had been vacant for about 40% for five years and threatened to become impoverished. Sufficient reason for the city council to allow permanent residence in the Zuiderzee op Zuid zoning plan. The Flevoland Provincial Executive opposed the plan and intervened with a so-called reactive designation.

Basis for the reactive designation

The ruling is interesting in the first place because the Division ruled that the Provincial Executive could also base the authority to issue a reactive designation on a provincial structural vision. The municipality had still argued that a reactive designation can only be based on a provincial ordinance (in preparation). But after a detailed analysis of the parliamentary history of the Wro when the reactive designation was introduced, the Division concluded that provincial policy could also serve as the basis for a reactive designation.

In this case, the provincial policy, the environmental plan, states as an essential element, considered essential for the desired spatial development, that permanent habitation of recreational houses in the outlying area is in principle excluded. Deviations can be made in incidental cases, but also by applying the so-called experimental framework. However, the application of the experimental framework was rejected for this project. Allowing permanent occupancy of the recreational apartment complex was therefore contrary to provincial policy.

Precedent

A strict handling of an essential element of policy by the competent authority and a detached (marginal) review of a decision not to grant an exception by the Division can be called standard. What else do you have essential elements of policy for? Invariably, the person who does not want to grant an exception - in this case the province issuing a reactive designation - also invokes the desire to avoid precedent. Before you know it, everyone wants an exception. So the county's attitude was understandable. But here we encounter the fairly rare case where the Division finds that, given the unique situation of the apartment complex, there are insufficient grounds for the fear of precedent. So what elements played a role in this?

First, that this is a unique apartment complex, with large apartments, and that there are no similar projects in the region. Secondly, restructuring does not appear to be possible. Rental through a rental organization has failed, price reduction and targeting the German market for sales has not worked, and reducing the size of the apartments is not possible because of the architectural design and because the apartments that are empty are scattered throughout the complex. Third, it is a unique situation because the apartment complex is just there and the long-term and structural vacancy may have negative effects on the immediate neighborhood.

These elements not only mean that there is no need to fear precedent, but also that, according to the Division, the Provincial Executive could not reasonably have issued a reactive designation. Even the detached - marginal - test applied by the Division therefore cannot pass the reactive designation.

Lock

Is this the prelude to more permanent occupancy of recreational homes? If there is structural vacancy that has effects on the immediate neighborhood and restructuring to maintain use for recreational occupancy demonstrably does not work, then surely this ruling offers a nice opening.

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