Licensing: the 'built-up area' is sometimes bigger than you think!

Expansion plans are regularly developed that do not (just) fit into a zoning plan. A permit to deviate from the zoning plan is then necessary. There are of course many flavors in this. For example, a permit based on the 'minor cases regulation'. The advantage of this arrangement is that the regular permit procedure is followed. The basic principle is that a permit is granted within 8 weeks.

However, conditions are imposed in the crumb case regulations. For an expansion plan outside the built-up area, for example, the conditions are stricter than for an expansion plan within the built-up area.

A November 13, 2019 Division ruling shows that the term "built-up area" is elastic. Thus, suddenly more and faster may be possible after all than you initially thought.

What was going on?

This procedure concerns a permit, which has been granted for the construction of a sports hall at the Strypsedijk in Tinte. The zoning ordinance "Landelijk Gebied Westvoorne" applies to the site of the building plan. One part of the grounds is zoned "Public Interest Use" and the other part is zoned "Agricultural". The Municipal Executive has granted an environmental permit to deviate from the management ordinance for an "accessory building" with application of the "minor cases" regulation.

A local resident disagreed with the granting of the permit and initiated proceedings.

Accessory structure

Permitting under the 'minor cases' regulation for an 'accessory building' is possible - without additional conditions and provided the municipality is willing to grant the permit - if the plan is realized within the built-up area. Outside built-up areas, two explicit conditions apply:

1. the property must not exceed 5 meters in height, AND;
2. the surface area must not exceed 150m².

The permit for the gymnasium allowed both a building height of more than 5 meters and an area larger than 150 m². This raised the question of whether the college had chosen the correct permit basis.

Court: no built-up area and extended permit procedure

The court ruled that the plot, on which the sports hall is planned, is not in the built-up area. This would be evident from the Tinte 2025 Structure Vision and also corresponds to the location of traffic signs indicating the built-up area.

That in the vicinity of the plot there are at least ten and at most fourteen dwellings in ribbon development, the court considers insufficient to speak of a/the built-up area. This is so small in size and there is no such coherent structure between these built-up areas that these residences can independently be considered a built-up area, even when it is taken into account that between these residences there is a church building with an originally associated association building and a former school building.

Since there is a plot outside the built-up area and the gymnasium is higher than 5 meters and has a larger surface area than 150 m², the cramped conditions could not be applied by the college.

The court therefore overturned the decision to grant the permit and revoked that decision. Granting an environmental permit for the sports hall would only be possible with an extensive permit procedure. Such a procedure quickly takes 6 months.

The municipality disagreed with this judgment of the court and appealed to the Division.

Criterion built-up area

It is established case law of the Division that when answering the question of whether a plot of land is located in a built-up area, a factual assessment takes place. What matters is whether there is a concentration of buildings and whether the area has a predominantly residential or accommodation function because of those buildings. The location of traffic signs is not important here, nor are municipal policy documents.

Department: built-up area and (thus) short permit procedure

The Division concludes that, despite the fact that the parcel is located in a predominantly agricultural environment-contrary to the court's opinion-the parcel is located within the built-up area. The Division explains this as follows:

"There are approximately 15 to 20 homes in ribbon development along three dike roads in the outlying area that converge at a junction, between which there are two farms. Although at some distance from each other, those residences, together with the church, the association building and a former school building, form such a concentration of buildings that the area has a predominant residential or residential function."

The permit thus followed the correct (short) procedure, according to the Division.

Other decisions of the Division also show that the concept of "built-up area" is elastic. For example, the rulings on a parrot sanctuary in Erica or the use of a barn in Goudswaard for catering activities.

Conclusion

Even in the case where a certain condition for the application of the regular (shorter) permit procedure, in this case the condition of location within the built-up area, does not seem to be met, this ruling shows that a nuance/closer nuance is appropriate.

That nuance can mean that a permit procedure to be followed by you for an expansion plan is shortened by over 4 months just like that.

Image: surroundings Strypsedijk Tinte