Each building plan assesses whether adequate parking will be provided. For complete new construction, that calculation is quickly made. But what if there is replacement new construction? Can the parking requirements of the building that disappears be taken into account? And does it matter if the building has been vacant for some time? A May 15, 2019 Division ruling answers these questions.
What was going on?
These proceedings concern a permit granted for the construction of 22 apartments in Rotterdam. These apartments will replace an existing building, which will be demolished to enable the realization of the new apartments. A number of local residents do not agree with this permit. They fear parking problems and think the building is too tall. The court declared their appeal unfounded in April 2018. The local residents appealed that ruling to the Administrative Law Division of the Council of State.
Fitting into zoning plan: only limited review still possible
There is no dispute in the proceedings before the Division that the building plan fits the zoning plan. However, the local residents point out that it can never have been the intention of the zoning legislator to allow such a massive structure on the plot. After all, the building has 5 floors and is right next to the neighbors' gardens. Loss of light, air, views and privacy is therefore the result, according to the local residents.
The Division (logically) does not go along with this story. This is because the planning consideration to provide for this spatial development has already taken place in the zoning plan procedure. The local residents should therefore have put forward these arguments in that procedure. Only a limited test remains in the procedure on the environmental permit. Refusal of the permit is only possible if requirements of aesthetics, the Building Code or the municipal building regulations are not met.
This is due to the so-called limitative-imperative system. For an explanation of the limitative-imperative system, see also, for example, the Division's decision of May 15, 2019(ECLI:NL:RVS:2019:1532).
Conflict Building Regulation Rotterdam
However, the local residents also argue in these proceedings that the building plan would violate the municipal building code. This is because not enough parking spaces will be provided at the apartments. According to the local residents, the parking requirements are assumed to be too low.
According to local residents, the parking requirements of the existing building were wrongly taken into account when determining the parking requirements for the new apartments. In fact, that building has been vacant for some time. Therefore, the parking requirement of the existing building cannot be considered when determining the parking requirement for the new apartments.
Only consider increase in parking demand
In considering this argument, the Division first refers to its settled case law. Which reads:
When assessing whether a building plan provides sufficient parking to meet its parking needs, only the increase in parking needs resulting from the realization of the building plan must be considered. As a rule, any existing shortfall can be disregarded.
This means that only the increase in parking demand due to the realization of the building plan should be taken into account compared to the already existing parking demand due to the existing property.
Okay, so the parking requirement of an existing property may be offset (netted) against the parking requirement of the new plan. But does that "existing property" have to be in use?
Offsetting parking needs possible with vacant property
'No,' says the Division. Vacancy of that property for a period of time is irrelevant here, with the Division referring to a previous ruling. So even if a property has been vacant for some time, the parking requirement of that property may (in principle) be deducted from the parking requirement associated with the new plan.
'In principle'
A (small) comment is in order, however. There are, in fact, conceivable exceptions:
- However, it must be a "Determinable parking need" of the property with which it is netted(ECLI:NL:RVS:2012:BY5126). The existing parking need must be able to be determined objectively to some extent in order to be able to set off the future parking need against it.
- The parking requirement to be offset must also be a "real parking requirement," ruled the Limburg District Court in its Feb. 13, 2017 ruling on the establishment of a Lidl in Gennep. If a property has been vacant for several decades, the question is whether there is still a 'real' (full) netting possibility.
- In addition, there is the possibility that a zoning plan (parking standards are no longer included in the building regulations) contains a further restriction. For example, there are municipalities with policies that stipulate that offsetting is no longer possible after X number of years of vacancy.
Conclusion
If your building plan involves replacement new construction, it is advisable to carefully consider what specific "parking needs" you need to meet. The basic principle is that you may offset the parking requirements of the previous building. That calculation can make just the difference that your building plan can make possible.
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 Quickscan.
