Transformation and the zoning plan

Many buildings have been transformed in recent years and this development is still ongoing. Think of offices that will be used for student housing or other forms of housing or, for example, business premises that will be used for retail. In the Environmental Law Decree, the possibilities for a change of use that conflicts with the zoning plan have been increasingly expanded in recent years.

The preceding question is whether there is a violation of the zoning ordinance.

Such a question was also raised in the Division's ruling of May 10, 2017(ECLI:NL:RVS:2017:1226). In that case, the VvE of the Cruquiusplaza complex wanted to use the business premises in that complex for retail. These business premises had been assigned the "mixed" zoning. Within that zoning, retail trade in a number of branches was allowed. However, the building regulations contained restrictive provisions regarding the number of square meters of retail trade allowed. Those restrictions were such that if those provisions had to be assessed, the intended transformation would be in conflict with the zoning plan.

The Council of State concluded that since it was purely a change of use and not construction, it was also necessary to look purely at the use provisions in the zoning plan and not at the construction provisions, which included the square footage restrictions.

This is interesting: if a building permit had also been required, the relevant building regulations would have had to be reviewed. Thus, the same number of square meters of retail space could not have been realized under the zoning plan. Possibly, however, by means of a deviation from the zoning plan.

Conversely, if the building provisions permit a certain building, but the provisions on use contain a limiting factor, an environmental permit application for the activity of building must, as a rule, also be tested against the provisions on use, because of the link between the provisions on use and the provisions on building that is included in almost all zoning plans. This is because an environmental permit application for the activity of building must be tested against the provisions on building and zoning, and the latter is generally elaborated in use provisions.

Thus, the following systematics emerge:

• If there is only a change of use and not construction: review only the use provisions of the zoning plan (and not the construction provisions).
• If construction activities require a permit: review the use and building regulations.

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