Conflict with zoning plan? Also pay attention to transitional law!

A project that initially appears to violate the zoning plan need not be if it falls under the transitional law. An environmental permit to deviate is then not necessary. This is once again made clear by a Division ruling of January 17, 2018 (ECLI:NL:RVS:2018:146).

Enforcement and permit application

In this case, the college informed the appellant that supervisors had found that his commercial building was being used for residential purposes and that this was not permitted under the zoning plan in force on the site. The college therefore intends to take enforcement action against this.

Shortly after this communication from the college, the appellant decides to apply for an environmental permit so that the building can indeed be used for residential purposes. The college decided to reject this application, however, because of conflict with the prevailing zoning plan. The parcel was zoned "Business," which did not allow occupancy. The Board refused to grant a permit to deviate from the zoning plan because, according to the Board, living in the business building was contrary to good spatial planning. The appellant did not back down and appealed the refusal.

No zoning violation, but still a rejection

The district court concluded that occupancy of the commercial building was covered by the transitional regulations and that therefore there was no conflict with the zoning plan. Next, however, the court ruled that the appellant's environmental permit had been rightly refused because "the college could reasonably have taken the position that from a spatial point of view the occupation of the three dwellings was undesirable and the college could have weighed this interest more heavily than the appellant's interests. Therefore, the court decided to uphold the legal consequences of the decision to reject the application.

Thus, the appellant has now received the good news that the occupancy is not in violation of the zoning plan, but is nevertheless not allowed to use the commercial building to live in. Therefore, the appellant decides to appeal.

No permit required

On appeal, like the district court, the Division ruled that the commercial building was subject to transitional law, which meant that there was no conflict with the zoning plan. According to the Division, however, this means that the use of the industrial building for residential purposes does not require an environmental permit for departing from the zoning plan at all. A further substantive assessment is then simply not (or no longer) necessary.

Therefore, the college could not and should not have rejected the application on substantive grounds, but instead, according to the Division, should have rejected the application with the justification that a permit is not required in this case.

Conclusion

For the question of whether there is a conflict with the zoning plan, not only the zoning rules are important, but also the transitional law. Thus, it is always necessary to look beyond the zoning rules alone. If the conclusion is that a certain activity falls entirely under the transitional right, no environmental permit is required.

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