Building to be transformed may be expanded immediately

Given the undesirability of vacant buildings, there is a great need for opportunities to transform vacant buildings into other functions. The legislature has therefore tried to introduce a fast procedure by which a transformation can be quickly licensed. Often there is a need to immediately (limited) expand the building to be transformed as well. The question was whether the law would also allow this with a fast procedure.

The Administrative Law Division of the Council of State ("the Division") has clarified in two rulings dated March 22 and 29, 2017, immediate expansion in a transformation is possible!

Legal regulation for transformation and expansion

Article 4, Appendix II of the Environmental Law Decree ('the 'minor cases regulation') regulates that with a (short) procedure of 8 weeks an environmental permit can be granted for transforming (changing a function) an existing building contrary to the zoning plan. In doing so, building activities may be carried out, but the built-up area or building volume of the structure may not be increased.

Not being allowed to expand the built-up area or building volume is quite a restriction, as a transformation of, say, a former restaurant into a store often requires an expansion of that existing structure, such as for a warehouse.

However, an expansion is possible under another part of the "minor cases" regulation. Namely, that part offers the possibility - in short - to expand a main building.

The question was whether these separate components may be combined in one permit or whether this would interfere with the statutory system. Indeed, the "transformation provision" clearly states that expansion is not possible with that provision.

Case law is clear: a combination is possible

Earlier, the courts of Zeeland-West Brabant and Midden-Nederland ruled that it follows from the parliamentary history that the legislator intended that this combination should be possible. The Division confirmed this in its rulings of March 22 (ECLI:NL:RVS:2017:744) and March 29, 2017 (ECLI:NL:RVS:2017:819).

With these rulings, the Division confirms that the "minor cases" regulation allows for a lot. Changing the function of an existing structure, while expanding at the same time, can be authorized within 8 weeks and does not violate the legal system, according to the Division.

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