The case study
In 2001, a couple (appellant) purchased a parcel of land on Rijksweg-Zuid in Elst, on which there is a former company residence of a fruit farm. A year later, the couple occupied this property as a civilian residence. What they did not know, however, was that the prevailing zoning plan "De Pas" allows only recreational use at the site. Despite help from the Overbetuwe municipality, which was initially willing to cooperate on a residential zoning, their plans met with resistance from the adjacent dairy farm. They feared that a residential zoning would limit their ability to expand. The couple vacated the property several years ago following an eviction. After many procedures, the appellant again requested in 2021 that the zoning be changed to residential. The Overbetuwe City Council denied this request on Sept. 20, 2022.
The reason for the refusal was the short distance between the plot and the adjacent dairy farm. According to Section 3.117 of the Environmental Management Activities Decree , outside built-up areas there must be a minimum distance of 50 meters between an odor-sensitive object (such as a home) and a livestock farm. In this case, the distance was only 24.93 meters. The council argued that a residential zoning would limit the expansion possibilities of the livestock farm and, moreover, that habitation would not result in a good living and working environment.
Minimum distance from odor-sensitive objects under the Environment Act
Also under the regime of the Environment Act, the distance of 24.93 meters is too short. Since the Environment Act came into force, municipalities must take into account the odor caused by activities on odor-sensitive objects in the environment plan. This duty follows from Section 5.92(1) of the Quality of the Living Environment Decree. Chapter 22 of the ambient plan is also referred to as "the Bridal Plan." This contains the general state rules that are included as a temporary part of every environmental plan. For example, Article 22.100 of the environmental plan of the municipality of Overbetuwe regulates the minimum distance of an animal house (of farm animals) from particular odor-sensitive objects. These distances correspond to the distances from Section 3.117 of the Activities Decree.
The city council's initial willingness
The appellant argued that in the past the council was in favor of changing the recreational zoning to residential. This argument was based on the fact that the municipal council had adopted a zoning plan in 2009 in which the parcel in Elst was given a residential zoning. However, this plan was annulled by the Administrative Law Division of the Council of State (hereinafter: the Division) in 2010, because at the time the municipal council had not sufficiently taken into account the interests of the adjacent dairy farm.
When deciding to adopt a zoning plan, the municipal council has policy discretion and must weigh the interests involved. For the present rejection of the zoning amendment, the municipal council had weighed up the interests on the basis of the current circumstances, in which the interests of the dairy farm again weighed heavily. This balancing resulted in the conclusion that allowing a residential zoning was not spatially acceptable. This is therefore in line with the Division's earlier opinion from 2010.
The Division ruled in the present ruling that it was justified for the city council to come to this rejection of the zoning change, despite its previous willingness.
Rural home
The case is reminiscent of the figure of the rural dwelling. A rural dwelling is a former farm dwelling that may be occupied by third parties who have no functional connection to the farm.
The Division has previously held that the standard of good spatial planning, insofar as it relates to the acceptability of the living and working environment, is intended to safeguard both the interests of local residents in an acceptable living and working environment and the interests of agricultural businesses in unhindered business operations (e.g. ECLI:Nl:RVS:2015:2364). If a former agricultural company residence is zoned as a rural residence, in planning terms it is still part of the establishment and is not protected from the environmental emissions of this establishment. In this way, the establishment is not hindered in its business operations by the use of the (former) agricultural company residence as a civilian residence.
The odor load on a rural home is thus in many cases higher than is acceptable on a civilian home. So could not the establishment of "rural dwelling" designation on the parcel in Elst be the solution for the couple? It is not. This is because there is no agricultural business - to which the home on Rijksweg-Zuid previously belonged - that is still active. The Division ruled in 2014 (ECLI:NL:RVS:2014:1093) that a rural dwelling may only be realized on a plot where an active agricultural business is located. If no business is present and re-establishment is not planologically possible, the dwelling cannot be converted. Indeed, in that case, the dwelling cannot be considered part of an operational agricultural establishment. Thus, the figure of the rural dwelling does not offer a solution in this case.
Closing
It is clear that the plot on Rijksweg-Zuid in Elst cannot be used for residential purposes. The Division's ruling of Oct. 23, 2024 emphasizes how important it is to carefully study a site's current planning regulations before purchasing a parcel. In addition, the ruling teaches that the city council's initial willingness to cooperate with a zoning change plays no role in weighing interests in subsequent proceedings. An end has come - in a sad way - to the couple's long legal battle to allow habitation on the parcel.
With the plot not getting sold, the question is how the couple can still make sense of the plot within the recreational zoning. During the Oct. 22, 2024 budget debate, Housing and Spatial Planning Minister Mona Keijzer still pointed out the urgency of the housing shortage. Swift action is needed to address the housing shortage and this includes reducing and changing the many rules and procedures. Relaxing the rules - in certain cases - regarding the minimum distance from odor-sensitive objects is an example of this and could do its bit to solve the Netherlands' housing shortage.
