Completely at the "whim" of a welfare committee?

Can the verdict on whether you get an environmental permit depend entirely on a required positive welcoming advice? The Division's answer to that in a January 10, 2018, ruling(ECLI:NL:RVS:2018:54) is clear: no, the competent authority decides and makes its own consideration.

What was going on?

This ruling concerns a zoning plan in Wassenaar. This zoning plan includes uniform regulations for the protection and development of cultural heritage in Wassenaar.

In order to protect cultural heritage, a double zoning "Value - cultural history - characteristic or image-defining object" has been assigned to several buildings. If this designation has been assigned, a positive advice from the Cultural Heritage Commission or another expert committee must always be given when granting an environmental permit. If there is no such positive advice, an environmental permit cannot be granted.

Completely at the mercy of the standards committee?

A number of buildings of amusement park and camping site Duinrell have been assigned such a double zoning. However, Duinrell does not want to be completely dependent on a positive opinion of a building standards committee when granting permits, and argues that by making such an arrangement, the city council is disregarding the legal system.

To this end, Duinrell argues that the final word on licensing should always be up to the competent authority, which in doing so can never be fully bound by the requirement that a positive opinion from a planning committee must be given in order for a license to be granted.

Even if there is a negative opinion from a building standards committee, the competent authority must be free to make its own assessment. And so, according to Duinrell, that should include a decision to grant a permit, despite the fact that a negative aesthetics opinion has been given.

Competent authority decides and cannot be bound in doing so

The Division agrees with Duinrell. By making whether or not an environmental permit can be granted entirely dependent on a positive opinion from a building standards committee, the municipal council is in violation of the law, according to the Division.

Indeed, the law is clear that - in this case - it is up to the college to make the final consideration of whether or not to grant a permit. Welstand concerns only one of the aspects that the college will have to include in the full consideration. The absence of a compulsory positive advice from an (external) (building standards) committee can therefore never oblige the college to refuse an environmental permit.

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