State Council accepts dynamic referral

Since November 29, 2014, municipal building ordinances may no longer contain urban development regulations. The Reparation Act of the Interior and Kingdom Relations (Stb. 2014, 458) stipulates that zoning plans adopted from November 29, 2014 must provide for these standards themselves. In addition, on November 1, 2014, the Spatial Planning Decree (Besluit ruimtelijke ordening) stipulated that it is permitted to refer to policy rules in a zoning plan, which is subject to the fact that these can be amended during a zoning plan and cannot be appealed.

In practice, this raised the question of whether the Division would agree to a reference in the zoning plan to policy rules on urban development regulations. Indeed, it was settled case law that, until the amendment of the Spatial Planning Decree, such a "dynamic" reference was legally uncertain and not permitted. In practice, this is particularly relevant for the application of parking standards, as those standards were previously part of Section 2.10 of the Wabo, which contains the assessment framework for obtaining an environmental permit (building activity), via the building regulations.

The Division clarified such a "dynamic" reference in its September 9 ruling (ECLI:NL:RVS:2015:2837). The Division ruled that a reference to policy rules is sufficient under certain conditions. In this ruling, the Division provides a guide - incidentally of its own accord - on how such a reference should be shaped.

The Division indicates that the zoning plan may include a rule that when exercising the authority to grant an environmental permit, sufficient parking shall be provided where sufficient means that the standards in the relevant policy rules are met and that if these policies are changed during the plan period, the change shall be taken into account.

The aforementioned ruling means that the Division accepts the dynamic reference, provided it is included in the zoning plan in a sufficiently clear manner. Incidentally, policy rules can also apply to a single change of use, so that even just when a change of use is made (without the need for construction activities requiring a permit), different parking standards will apply.

For a building plan, which is subject to a zoning ordinance adopted before Nov. 29, 2014, the urban planning provisions in the building ordinance can still be reviewed until July 1, 2018

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