An asphalt skate track of 5,100 m2 does not require an environmental permit

The Division has spoken: no environmental permit is required for a 5,100-square-meter asphalt skate track. This is evident from its February 6, 2019 ruling(ECLI:NL:RVS:2019:331). 

This ruling is interesting for two reasons. First, because the ruling shows once again that the Division uses the "Van Dale" with great regularity to assess whether a certain use is permitted under a zoning plan. Second, because it follows (implicitly) from this ruling that a 5,100 m2 asphalted skate track is not a "structure."

What was going on?

These proceedings are about the construction of an asphalted 5,100 m2 skeeler track on a large grass field in Warmond. According to the municipality, no permit is required for the construction of the skeeler track.

Several residents disagree. They feel that the zoning plan does not allow the land on which the roller rink is planned to be used for this purpose. The zoning plan states that only a "sports field" is allowed on the land. According to them, this does not include a skating rink. They also feel that this skating rink is a "structure," which also requires a permit.

In the objection procedure and subsequent court proceedings, the residents were not vindicated. They then appeal to the Administrative Law Division of the Council of State.

Zoning explanation

It is established case law of the Division that for the interpretation of whether a certain use is permitted under a zoning plan, the zoning map and accompanying rules are decisive. If these are not clear in themselves or as a whole, the Division looks at whether the explanatory notes to the zoning plan provide clarification. If that is also not the case, it looks to normal speech usage, in which case it follows the "Van Dale Groot Woordenboek van de Nederlandse Taal".

The grounds, on which the skating rink is planned, are zoned 'Sports', with the additional indication 'sports field'. The Division notes that the meaning of the term 'sports field' is not defined in the zoning plan. Nor can any specific meaning be derived from the explanatory notes and the systematics of the plan.

The Dikke Van Dale as a frame of reference

The Division then also grabs the dictionary. In it, a 'sports field' is defined as 'a field demarcated according to the rules of sport'. A 'sport' is defined as 'a set of activities aimed at improving physical and/or mental performance through training and competition, such as rowing, cycling, swimming, skating, becoming, playing soccer, and so on'.

The Division concludes that a use as a skating rink thus fits within a function designation "sports field. The use of the land for a skating rink is therefore in accordance with the zoning plan, according to the Division.

A lesson to be learned from this judgment is that - although at first glance a particular use may appear to violate the zoning plan - it should always be examined very critically whether a particular use is actually prohibited.

Asphalted skate track of 5,100m2 is not a structure

What the Division does not explicitly comment on, but what can be inferred from the ruling, is that it finds that such a roller rink is not a structure and therefore does not require a building permit.

In determining whether a building permit requirement applies, the Division always looks at whether there is "a structure of any size of wood, stone, metal or other material, which at its place of use is either directly or indirectly connected to the ground or directly or indirectly supported in or on the ground, intended to function in situ"(ECLI:NL:RVS:2018:2657).

The skeeler track consists of an asphalt top layer of 3 cm, an asphalt intermediate layer of 4 cm, an asphalt carpet pad of 5 cm with an argex carpet pad underneath to a depth of 50 cm (with integrated drainage system) and geotextile liner.

As such, the roller rink appears to meet the definition of a "structure. Yet in its ruling(ECLI:NL:RBDHA:2018:2969), the court rules otherwise. According to the court, referring to an earlier decision of the Division (see about that: this article), the construction of paving is not a structure. That the construction also requires an argex underlayment, drainage and a geotextile liner makes no difference to the court. After all, these are part of the pavement.

Despite not explicitly ruling on this, the Division seems to share this opinion. Indeed, should the Division have thought otherwise, it would be required to give an explicit opinion on this(ECLI:NL:RVS:2004:AQ6634).

Therefore, the final verdict of the Division is that the construction of the asphalt skate track of 5,100 m2 is not subject to a permit requirement at all.

Conclusion

The lesson to be learned from this ruling is, first of all, that one should always critically examine whether a desired use fits within the zoning plan. This can sometimes produce unexpected results. This also applies to the question of whether in some cases there is actually a "building". After all, only if there is a structure is a permit required for a building activity!

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