Through a preparatory decision, the City of Amsterdam has put a stop to the use of land and structures for the purpose of retail and other facilities aimed at tourists and day-trippers. In addition, a stop has been placed on the establishment of businesses that sell food for immediate consumption, such as ice cream parlors. In doing so, the City Council has effectively created a new permit system that is rather vaguely worded.
What is a preparation decision?
A preparatory decision is a planning decision to be adopted in preparation for a new zoning plan (or other planning review framework). A preparatory decision can mean that the present use can no longer be changed to (certain) other functions without permission from the municipality. This is not possible if those functions are allowed in the zoning plan that is still in force. The preparatory decision lapses if a draft zoning plan is not made available for inspection within one year.
What is prohibited?
The Amsterdam preparatory decree prohibits, within a large part of the center area, changes in the use of land and or structures to forms of retail trade, consumer services and other facilities aimed at day trippers and/or tourists. Function changes to recreational facilities in which any artistic, historical or educational character is subordinate and which are characterized by for-profit business operations are also prohibited. Functional changes to forms of retail that focus on the sale of food and/or beverages that are given away primarily to be consumed immediately and new hospitality sections in retail food establishments are also prohibited. To determine whether a commercial facility is aimed primarily at day trippers and/or tourists, advertising, presentation, assortment and/or operations are considered.
The preparatory decision does provide for a possibility to deviate from the prohibitions included in the preparatory decision by means of an environmental permit. Such an environmental permit can only be refused if the function change results in an unbalanced supply, taking into account the share of the functions in question already present within the relevant environment.
Right remedy?
But is this the right remedy? The preparatory decree is a decision that can be made in preparation for a new planning framework. The law states that a prohibition to change the function can be included in the preparatory decision "to prevent an area designated by a preparatory decision from becoming less suitable for the realization of a destination to be given to it by the plan." Thus, instituting such a prohibition must serve a spatial interest.
The question is whether particularly spatially relevant aspects are protected in this case. The explanatory memorandum to the decision explains that: "The diversity of supply continues to become impoverished" and: "all in all, this tourist-consumptive sector is causing people living and/or working in Amsterdam to become alienated from this part of the city."
Apparently, the purpose of this preparatory decision is to be able to exert more influence on the supply in the center of Amsterdam. However, the question is whether this primarily serves a spatial interest. After all, the apparent desire to bring the supply in the center more in line with the wishes of Amsterdam residents is not simply a spatial interest, unless the level of facilities would really come under pressure.
It could be said that the preparatory decision and the accompanying possibility to deviate by means of an environmental permit are mainly akin to economic planning, rather than testifying to spatial planning.
Lawless
This prohibition is also worded vaguely or broadly. When does a store focus primarily on day trippers and/or tourists? In order to be allowed to establish a new store in the center area, must it be made clear that a substantial part of the turnover will be generated by spending by Amsterdam residents?
In fact, practically everyone who wants to change the use to one of the mentioned functions is forced to ask permission from the municipality of Amsterdam. And that while, based on the current zoning plan, these functions would simply be allowed.
Submit to court!
All in all, there are therefore critical questions to be asked about the use of this power in relation to the interests to be served by it and the legal uncertainty resulting from this preparatory decision. The fact is, however, that this preparatory decision in itself is not appellable, so it cannot be brought directly before the administrative court.
The environmental permit that can be granted on the basis of this preparatory decision is appellable. An enforcement decision can also be triggered by implementing such a change of function without an environmental permit. In this way, the preparatory decision can indirectly be brought before the court. In view of the foregoing, the question is whether the preparatory decision and the decisions to be taken on the basis thereof can stand the test of judicial scrutiny.
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