Rulings by the Administrative Law Division of the Council of State ("the Division") often state that a "ladder test" was wrongly not performed. Reference is then made to the ladder for sustainable urbanization in article 3.1.6 Bro, in which a municipality has an accountability obligation for the economical and responsible allocation of functions.
This accountability requirement applies if a zoning plan provides for a "new urban development. When this is the case is increasingly clear from the Division's case law.
A new chapter can be added to that case law with a ruling by the Division of 26 April 2017 (ECLI:NL:RVS:2017:1155). Indeed, when there is an "unused planning opportunity," sometimes the "ladder test" must still be performed. In doing so, the Division refines its previous case law.
Ruling on business park 'Harnaschpolder Zuid'
The April 26, 2017 ruling concerns a zoning plan that allows for a business park of approximately 55 hectares between the A4 national highway and the core of the village of Den Hoorn. This area is also referred to as "Harnaschpolder Zuid.
The previous zoning plan included several development obligations for these lands. With these detailed development obligations, various functions could be allowed, such as businesses, housing, offices, or cultural and social facilities. The previous zoning plan thus already contained a development option to allow for the (vast majority of the) business area. The question the Division had to answer was whether - also in light of its previous case law - there was a "new urban development.
Jurisprudence Division on 'unused planning opportunities'
In previous decisions, the Division has ruled on "unused planning opportunities" in relation to whether there is "new urban development.
The ruling of February 24, 2016 (ECLI:NL:RVS:2016:489) concerned a zoning plan that provided for the construction of 145 homes between the nuclei of 's-Gravenzande and Naaldwijk. The previous zoning plan had already included an elaboration requirement that allowed these homes to be built. The Division sets out a (prima facie) clear premise here. It considers:
Therefore, the previous plan already provided for a development obligation for the construction of dwellings, thus providing a planologically unused opportunity. The Division ruled in its July 1, 2015, case no. 201401417/1/R1, that unused planning opportunities may be included in a new plan without having to meet the conditions set out in Article 3.1.6, paragraph 2, of the Bro.
With this premise in mind, the conclusion in the April 26, 2017 ruling seems to be that there is no "new urban development. After all, there is also talk there of an 'unused planning opportunity' with which the business park could be made possible. However, the Division ruled otherwise, thereby refining its earlier case law.
Degree of choice in an elaboration requirement is decisive
Indeed, the Division ruled in this ruling that
the extent to which an obligation to elaborate offers choices with regard to the functions to be included and the extent thereof determines whether a new urban development is made possible as referred to in Article 3.1.6, second paragraph, of the Bro.
In this case, the Division notes that the development obligations included in the previous plan offered wide choices regarding the functions to be included in a development plan and their size. A choice could be made from various functions such as businesses, housing, offices or cultural or social facilities. In addition, the Division notes that the size of most of these functions was not capped.
This broad "freedom of choice" then leads the Division to the conclusion that "already for this reason" by allowing a 55-hectare business park in the new zoning plan a "new urban development" is provided. And therefore a ladder obligation applies. Despite the fact that this zoning therefore fitted within the development obligation in the previous zoning plan.
With this ruling, the Division refines its general line that an obligation to elaborate as an "unused planning opportunity" does not, by definition, lead to a ladder justification requirement. That may well be the case.
Quickscan zoning plan
Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.
