It happens quite often that land zoned for heavy (production) industry is rezoned to lighter industry. For example, because housing is being built nearby or to protect the environment. Although often specific regulations are still provided for the existing company, this can still result in considerable damage to the plan. In an issue that has been pending since 2010 and was recently ruled on by the Division, this resulted in more than half a million in planning damage having to be paid, even though the existing business was simply zoned as such.
Removing heavy activity
In this case, it concerned a production site on an industrial estate for which the province of Gelderland had requested restraint in rezoning. It had therefore initially been decided to (significantly) limit the business activity allowed on that site to less burdensome environmental categories (as described in the VNG brochure). The associated planning damage amounted to more than €1,000,000. Because that was apparently a very sour apple for the municipality, the municipality decided to at least reallocate the existing business operations, a production site for plastic packaging materials and other plastic processing without phenolic resins. However, that, according to the owner, did not eliminate all planning damage. Indeed, other business activity from the same or similar environmental categories would no longer be possible, because as far as those higher environmental categories were concerned, only existing business was allowed. In general, this would not benefit the marketability of such land.
Value-defining environmental categories
There was then discussion at the Administrative Law Division of the Council of State as to the extent to which other large production companies would be interested in such land at this somewhat remote location. The municipality's advisor (SAOZ) had taken the position that production locations for heavy industry were far from common and that therefore little or no damage would be suffered at this location. Activities in lower categories were still allowed. According to SAOZ, these activities were much more popular and of greater value. Moreover, SAOZ includes in its advice that part of the buildings is only used for storage and this would still be possible after rezoning.
In the ruling(ECLI:NL:RVS:2018:1186), the Division concluded that the SAOZ used incorrect assumptions in its advice and did not convincingly explain why the land would not derive the highest value from the possibility of establishing heavy industry there. Therefore, the Division engages the Foundation for Administrative Law Advisers to make its own determination of planning damage, which, incidentally, the Division is increasingly doing.
That appraisal showed that the land did derive its highest value from the possibility of locating the heavier activity there. Such locations are scarce, according to the appraiser, which obviously affects the value. Moreover, according to the appraiser, there is an ample supply of business locations and premises in the Netherlands for the lighter environmental categories, so that the land has less value in terms of these establishment possibilities. Thus, although the land has now been rezoned for the lighter environmental categories and the specific business operations for the production of plastic packaging materials, the appraiser hired by the foundation concludes that a planning damage of €570,000 remains.
Chance of damage despite destination of own operations
This ruling clearly shows that it is important to be very alert in the case of heavy industry and production sites if there is a (partial) rezoning of owned land. Even if at first glance an amended zoning plan has no consequences for the present business operations, a change in the allowed environmental categories or a change in the "state of business activities" can nevertheless result in considerable damage to the plan. After all, a zoning that is specifically attributed to existing business operations makes it very difficult to transfer the land and buildings.
A plan damage claim also lapses five years after the zoning plan becomes irrevocable, so it is wise not to wait too long to file a request for compensation for that plan damage.
Quickscan zoning plan
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