Flash deliverers of groceries and other (fast) delivery services are popping up like mushrooms, and with that apparently also comes legal discussions. For example, municipalities would act against the presence of grocery flash deliverers based on zoning. It is highly questionable whether such enforcement issues should (or could) be resolved through zoning.
Pay attention to the planning situation
As a delivery service operator, landlord or developer, it is important to take a good inventory of what the establishment and operation of such services must meet.
For this, one of the important things is how flash delivery services or delivery hubs qualify in a planning sense. There are two obvious destinations, 'retail' or 'businesses'. Municipalities are (to a certain extent, partly for reasons of legal certainty) free to define these destinations. The scope of those destinations can therefore differ from one municipality to another and even from one zoning plan to another.
Delivery services in business parks
Although the discussion about flash delivery companies and delivery hubs is new, the discussions about the planning qualification of web shops or pick-up services in business parks, for example, are certainly not new.
For example, the court ruled on an online liquor store that offered liquor online from a business location, accepted payments and packed and offered goods for shipment that this fell within the definition of retail. Classifying the liquor store as retail resulted in a conflict with the applicable business zoning.[1]
There was a very different outcome in a case in which a webshop also had a takeout counter. This webshop had also established itself at a location with a business zoning. The court qualified the (actual) delivery through the pick-up counter as retail. However, delivery by means of a home delivery service to consumers is not retail trade within the meaning of the planning regulations, according to the court.[2] The court considered it relevant that a mail order business was also permitted on the site.
Are delivery services retail?
Delivery services may also qualify as retail. An establishment of an online store that includes products on display and access for visitors quickly qualifies as retail.[3] An online store with a pickup counter also quickly qualifies as retail. In the past, there have also been regular lawsuits about takeout and delivery services for pizzas, which have been ruled to qualify as retail.[4] However, for flash delivery services and delivery hubs, there is generally no takeout or display of products at all. However, in the aforementioned case of the online liquor store, there was also no display or delivery of products and nevertheless there was retail trade within the meaning of that zoning plan.
Assess on a case-by-case basis
In short: it will have to be assessed from case to case whether there is retail or a business (not being retail) within the meaning of the zoning plan. Therefore, it is certainly not necessarily the case that flash delivery companies and delivery hubs are not allowed within a business zoning and are allowed within a retail zoning or vice versa. It is even conceivable that in some zoning ordinances they are permitted under both.
Public order
It is also highly questionable whether spatial planning, such as zoning plans, should be used for enforcement on nuisance from flash delivery services. Surely the nuisance complaints expressed in the media often refer to (anti-social) behavior of specific individuals and not necessarily to spatial aspects inherent in the operations of the delivery services. If we are talking about anti-social road behavior, intimidation or noise nuisance due to excessive behavior of individuals, it is more a public order issue than aspects that should be regulated through spatial planning.
As far as we are concerned, it is then more obvious to enforce against those specific individuals on the basis of criminal law or public order (APV).
Completion
All in all, it cannot be said in a general sense that flash delivery services or delivery hubs fall under a particular destination. As far as we are concerned, that is also not at all relevant to be able to take action. In our opinion, the APV provides more appropriate enforcement options.
[1] Rechtbank 's-Hertogenbosch 27 December 2011, ECLI:NL:RBSHE:2011:BV0158.
[2] East Brabant District Court March 14, 2014, ECLI:NL:RBOBR:2014:1154.
[3] ABRvS July 14, 2021, ECLI:NL:RVS:2021:1546.
[4] ABRvS March 22, 2001, ECLI:NL:RVS:2001:AB1871.
