Reason
The College of the Provincial Executive of South Holland (hereinafter GS) issued a proactive designation to the council of the municipality of Noordwijk (hereinafter the council) by decision dated August 23, 2022. In short, the proactive designation meant that the council had to revise the zoning plan for the Bronsgeest location in Noordwijk within one year so that at least 240 social rental housing units are provided at that location instead of the 105 rental housing units that were actually in the plan. For GS, the reason for the proactive designation was the (growing) need for more social rental housing in Noordwijk, a point that GS said also served a provincial interest.
In this ruling, we see a rare example of the so-called"proactive designation" based on Section 4.2 of the Spatial Planning Act. This instrument, in which a higher authority (such as the province) forces the municipality to revise a zoning plan, is rarely used in practice. This ruling reflects well the criteria applied by the Division in determining the intrusiveness of the judicial test in the event of a (proactive) designation by the province.
Legal framework proactive designation
GS may decide to issue a proactive designation if provincial interests require such a designation with a view to good spatial planning. When the proactive designation relates to "a specifically designated location, from which no deviation is possible," it is not open to a view, but only to a direct appeal.
The Division outlines, in the context of the intrusiveness of judicial review, a kind of sliding scale:
"This entails that the more far-reaching the consequences of the proactive designation, the higher the requirements to be imposed on the substantiation of the necessity and content of the proactive designation. [...]. These requirements are also higher the more the proactive designation interferes with the policy and assessment space available to municipal administrative bodies with regard to planning choices to be made.
8.2. [...] in which a zoning plan is adopted in implementation of a proactive designation, no grounds for appeal may be raised which relate to the designation on which the decision to adopt the zoning plan is based, insofar as the designation relates to a site specifically designated thereby from which no deviation is possible. In the zoning plan procedure, therefore, the spatial development that has been proactively designated will have to be considered established at least in terms of content and location."
In short, when testing the necessity of the proactive designation, the Division takes into account (among other things) the far-reaching nature of the consequences and the discretion of the municipality. In this case there was also only an appeal available (no view) which makes the Division strict test.
Provincial interest and the need for social rental housing
GS based its proactive designation on the need for more social rental housing in Noordwijk, a point that GS said also served a provincial interest. After all, the province ensures a balanced distribution of housing within the region. According to the province, Noordwijk would lag behind in terms of social housing, with only 21% of the total housing stock in the social rental sector. The Noordwijk council countered that there were already concrete plans for the realization of social rental housing and that the additional requirement of the college was not necessary.
The Division finds that the college has not sufficiently substantiated why it was necessary to build 240 social housing units at this very location. Moreover, there was no binding agreement between the province and the municipality on this number. This means that the college had insufficiently justified its position and that there was room for other solutions, such as spreading the housing over several locations.
Other interests and feasibility
The value of the subsoil was also important, according to the Division. The area largely consists of prime bulb land with great agricultural and scenic value. The Working Group to Preserve Bronsgeest and other interested parties argued that the loss of this land had not been adequately considered in the college's deliberations.
Although the proactive designation itself does not allow for residential development, the designation does require that the zoning plan be revised. This means that the designation could result in more prime bulb land disappearing. According to the Administrative Law Division, the college had not sufficiently taken this possibility into account and the college's decision was thus insufficiently motivated.
Finally, the municipal council argued that the designation would lead to a delay in the implementation of the existing zoning plan for Bronsgeest, which already provided for the construction of up to 350 housing units, 105 of which were social housing units. The Administrative Law Division ruled that the council did not adequately consider the financial consequences and implementation of the building plans for the Bronsgeest municipality.
The Environment Act and legal protection
Proactive designation has not returned under the Environment Act. Instead, the system of instructions has been chosen. Although an instruction (Art. 2.33 (Province) & 2.34 (State) Ow) is very similar to a proactive designation, there are also differences. First, when an instruction is given, there no longer needs to be a provincial or national interest. An instruction can be given if it is necessary for the efficient or effective exercise of duties and powers under the Environment Act. Moreover, an instruction on the adoption of an environmental plan must be given with a view to "a balanced allocation of functions to locations.
Because it is no longer necessary to have a provincial or national interest, the scope of instructions has been broadened somewhat compared to the proactive designation. I therefore expect that the figure of instructions will be used more often.
An instruction issued by the state or province can (in principle) be appealed directly to the Division. Should you wish to appeal a given instruction, please do not hesitate to contact us.
