Due to increasing demand, but also in connection with renovation or restructuring work, there is regularly a need for temporary healthcare real estate. As is often the case within spatial planning, such a development can subsequently encounter resistance from the surrounding area. Neighbors or other interested parties may not believe that the proposed real estate development is only temporary, may see their surroundings further turned to stone, or may have other reasons why care real estate in their area is undesirable. Given the required investments and impact on the environment, the "temporariness" is then often explicitly questioned.
From the October 10, 2018 ruling of the Administrative Law Division of the Council of State, it can be seen that this argument has practically no chance of success (anymore). Make way for thus temporary care real estate: within eight weeks an environmental permit for temporary care real estate (maximum 10 years), even if that development is contrary to the zoning plan!
Relaxed regime for temporary structures
Already in 2014, the law was amended with regard to temporary structures (Sept. 4, 2014, Official Gazette 2014, 333). Before that time, a permit for a temporary structure, contrary to the zoning plan, could only be granted if it was plausible that after the expiration of the stipulated period, there was no longer a need for the temporary structure. For care real estate, this could mean, among other things, that it had to be demonstrated that after the period had expired, there was no longer any demand for (the use of) the care real estate. Given the increasing demand, this was not always easy. It is precisely this requirement of demonstrating temporary need that has been dropped.
Remarkably, this does not yet seem to have landed with all courts in the Netherlands, as the Zeeland-West Brabant District Court in September 2017 still tested a temporary care real estate concept against that old criterion (is the need even temporary?). In its October 10, 2018 ruling, the appeal against that court's decision, the Administrative Law Division calmly explains once again that the temporary need criterion no longer applies.
Requirements for temporary permit healthcare property
But what is currently still valid? When the law was amended in 2014, the following was noted in this regard: When a permit is granted, it must be plausible that the activity can and will actually be terminated after the period stipulated in the permit. For this, it is relevant that it is actually possible that the activity can be terminated without irreversible consequences.
The practice then spent some time with questions about how the "can and will be terminated" and "without irreversible consequences" should be interpreted and the extent of the duty to state reasons for this. We now know that a temporary permit may soon be granted. The healthcare real estate ruling is a good example.
Temporary care real estate applied
The appellant in question complained that there was clearly an irreversible situation due to the realization of the healthcare property. In doing so, he pointed to the extensive construction costs and to the construction drawings which would show that it was clearly not a temporary structure at all. Furthermore, according to the appellant, the ground work to be carried out should be considered "irreversible.
These are understandable positions in themselves. But the Division is short on them. The municipality had included in the permit that after the expiration of the period specified in the environmental permit, the permit holder was obliged to restore the existing condition (i.e., the condition before the granting of environmental permit ). Next, the Division considers that there is no basis for the opinion that the municipality should have realized in advance that the requirement could not be implemented.
Thus, it seems that the administrative law judge tests temporariness very "lightly. If it is in good conscience conceivable that the existing condition will be restored, despite its price tag, the temporary permit may be granted. The need for the temporariness plays no significant role.
Temporary permits considered more closely
It is nice to juxtapose this ruling with another recent ruling on a temporary structure. That case involved an extensive solar park.
The Administrative Law Division was allowed to rule on appeal on a ruling by the District Court of Northern Netherlands on a temporary solar field. According to the court, that case was clear that the solar panels would remain on the plots for longer than 10 years. Indeed, the court also upheld that intention. Furthermore, the court found it implausible that a 22-hectare solar farm with a construction cost of over one and a half million will be dismantled and removed after 10 years. According to the court, the temporary permit could therefore not be granted and an extensive procedure should have been completed (26 weeks).
The Administrative Law Division overturns the court ruling on the grounds that the solar panels and the steel structure on which the panels rest are easily relocatable, making it factually possible and plausible that the solar arrays can be removed after 10 years without irreversible consequences. No more, no less.
While this admittedly very 'flexible' approach by the highest administrative court has been criticized, it does offer many opportunities to quickly permit temporary structures. It even seems that it is possible to make 'deliberate' use of a short temporary permit procedure (with fewer requirements for justification) and then, whether or not in consultation with the municipality, to insist that the development be included in a zoning plan in due course and still be made permanent. Whether that was entirely the legislator's intention is debatable. Anyway, for healthcare real estate developers in a hurry, averse to zoning procedures and with a good relationship with the municipality and a bit of nerve, it does offer opportunities!
Quickscan zoning plan
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