Permit holder: be critical of justification for own granted permit

Most initiators of a building plan appreciate it if the competent authority is not too critical about it and grants the necessary environmental permit for it quite easily. After the permit has been granted using the regular preparation procedure, construction can begin immediately. If there are objectors lurking about, however, as an initiator you would do well to be critical of the granting of the permit yourself, or at least to go easy on the construction. This is evident, for example, from a ruling by the Administrative Law Division of the Council of State on June 19, 2019(ECLI:NL:RVS:2019:1953). This upheld the annulment of an environmental permit for a business premises that had already been realized and an exit permit for an already constructed driveway.

What was going on?

A furniture wholesaler in Uden wants to build a third industrial hall with loading docks on a piece of undeveloped land next to its two existing industrial halls. The site borders a garden center on the other side. The building plan requires a deviation from the zoning plan. The building plan exceeds the minimum distance to the lateral plot boundary of 5 meters prescribed in the planning regulations. Access to the site for logistical reasons will not take place via the furniture wholesaler's existing exit road. The loading docks are projected on the side of the garden center and there does not seem to be enough space on the site to maneuver the trucks around the new warehouse. Thus, new access and thus an exit permit is required. Both are granted and both the industrial hall and the exit road are subsequently realized. However, the adjacent garden center disagrees and objects.

Zoning conflicts: looking up building limits

To remove the conflict with the zoning plan, the college applied an "within plan" deviation power. This offers the possibility of permitting minor departures from building and zoning boundaries. However, the question arises whether the minimum distance of 5 meters to the lateral plot boundary is a building boundary as defined in the planning regulations. On appeal, the court answers that question in the negative and the Division confirms this. The licensed building does not exceed building or zoning boundaries, but is simply provided too close to a plot boundary. The within-plan deviation power applied by the college does not address this situation and such a distance requirement is therefore not a building boundary.

The permit holder still argues that its own new surveying shows that the industrial hall meets the distance limit, so there is no conflict with the zoning plan at all. However, this does not move the Division. However, because it was only argued on appeal that the minimum distance requirement in the zoning plan was met and because it could not be determined whether the permit holder's measurement on the cadastral photograph was correct, the Division assumes the college's measurement.

The court's annulment of the environmental permit therefore stands.

Exit permit: too short of the mark

Usually a municipal General Municipal Bye-Law has a permit requirement for the construction of a driveway. This exit permit must be granted unless a ground for refusal arises. These grounds for refusal are exhaustively listed and relate, for example, to the safe and efficient use of the road. What this means can be further elaborated in policy rules. That is what the Board has done in this case, and one of those policy rules is that in and near curves it is not allowed to build an exit road, as this could endanger traffic safety.

As can be seen in the satellite photo above, the egress road is located near a curve. Regardless of whether the driveway is sufficiently safe, the college should have denied the driveway permit because of its own policy, or it should have given reasons why that policy should be deviated from in this case. The college failed to do so, so the court also overturned this permit. Added to this is the fact that road safety can also be questioned factually. For example, it appears that the maneuvering of the trucks cannot take place on their own property and that the trucks must reverse from the public road into the driveway, whereby they also cross a separate bicycle path.

The licensee's argument which, in short, is that this turn is not a turn within the meaning of the policy rules, cannot help him. The policy rules do not distinguish between types of curves, so it applies to every curve. Furthermore, a note drawn up afterwards (on appeal), from which it would appear that the situation is safe, can no longer count as justification for the college's decision, according to the Division.

So even if permit holder wriggles in all sorts of corners: the court's annulment of the egress permit also stands.

Consequences: is there a way out?

The Municipal Executive has been ordered by the Division to make a new decision in compliance with the ruling. Although granting a permit is still possible in both cases, in the case of the exit permit it will be necessary to substantiate (significantly) better why the situation is (still) sufficiently safe for traffic and why the exit policy is deviated from. If the college no longer wishes to cooperate, the permit holder does have a problem. After all, without an exit, his business hall with loading docks is of little use to him.

For the too short distance to the plot boundary, the Division leaves open the question of whether the environmental permit for this can, on reconsideration, be granted with the application of the exceptional circumstances rule, or whether the extensive preparation procedure must be followed. If the interests are weighed up properly, it should in any case still be possible to permit the business hall on a different basis. If so, the college must still be willing to cooperate. Otherwise, it cannot be ruled out that part of the industrial hall will have to be removed. In short: people in Uden will be busy for a while.

In conclusion

The lesson of this ruling is that, as an initiator, you must remain critical of permits granted, even if the competent authority is willing to cooperate. If you want to obtain more clarity about the legal tenability of a permit and objectors are lurking anyway, a request for a preliminary injunction, for example, can be triggered so that the court can quickly consider the permit. Better to be half right than half wrong.

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