Article 2, Annex II Environmental Law Decree has long offered the possibility of permit-free expansion of a main building. When Article 2 is applied, no permit is required for building and deviating from the zoning plan. However, this does not mean that the zoning plan does not have to be assessed at all, because the size of the yard may be limited by the zoning plan. With a June 5, 2019 ruling, the Division has significantly complicated permit-free construction.
Permit-free construction and zoning variance
Section 2, Appendix II Environmental Law Decree (hereinafter: Bor) provides an exception to the permit requirement for both building and departing from the zoning plan. As a result, with the application of Section 2, it is possible to build without a permit even if the zoning plan does not allow construction there, for example because a building plane is missing. However, this does not mean that the zoning plan is not relevant at all.
Yard and rear yard area
Indeed, for example, for Article 2, Section 3, only permit-free construction can take place in the rear yard area. The rear yard area is determined by the location of the main building and the size of the yard. The yard consists of the parcel of land that is directly adjacent to a main building and that is actually laid out to serve the use of that building, and, insofar as a zoning plan or management ordinance applies, they do not prohibit that layout. There is now quite a bit of case law in which it has been ruled that when a zoning plan excludes any form of building and furnishing for the benefit of the main building on a part of the parcel, those grounds do not qualify as a yard. See on this, for example, the rulings with numbers ECLI:NL:RVS:2018:571 and ECLI:NL:RVS:2017:3267. Thus, the rear yard area was always already formed by what the zoning plan allowed.
Maximum building area
However, the starting point was then always that once it has been determined that it concerns the rear yard area, it is no longer necessary to check against the zoning plan whether that structure is permitted there. After all, Art. 2 contains an exception to the permit requirement, also for deviating from the zoning plan. In the ruling with number ECLI:NL:RVS:2019:1832, however, the Division took a considerably more nuanced position on this.
That case involved the permit-free expansions of a Suitsupply store in Amsterdam. That store was expanded by several structures, without a permit. The Division assessed those structures and concluded that some of the structures could indeed be erected permit-free.
Overrun gross floor area
However, the zoning plan in effect there also contained a cap on the maximum square footage of gross floor area allowed. That gross floor area, according to the Division, must include spaces used for a function that is subordinate to on-site retail.
The Division then finds that the function in the (legally) permit-free structures exceeds the permitted number of square meters of gross floor area of retail trade. According to the Division, the Board is authorized to take enforcement action against that excess.
Consequences for practice
In my opinion, this is a very special ruling. The consequence of this ruling is that permit-free extensions are still tested against the zoning plan if, for example, it contains a maximum surface area for a certain function. This while Article 2, Appendix II Bor also contains an exception to the permit requirement for the use of and deviation from the zoning plan.
Moreover, this creates the actual situation that although a structure may be built permit-free, it cannot be used for the main function or a subordinate function. So what can that legally built structure still be used for? I hope this ruling will be nuanced in the near future.
At present, it should be taken into account that when a main building is extended permit-free, this does not yet mean that any maximum included in the zoning plan for a particular function may be exceeded. Thus, when developing permit-free plans, keep in mind that a test against the zoning plan could still take place.
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