Preventing high plan damages

No doubt you have to deal with it from time to time or even regularly: a nice building plan that requires a zoning change or a deviation from the zoning plan. Some time after the building plan has been realized, you receive a request from the municipality to compensate a neighbor for the planning damage the municipality has had to pay. By being alert, you can often avoid having to pay high compensation for planning damage.

Plan damage recovery agreement

In many developments, the municipality enters into a plan damage recovery agreement with the developer or the recovery of plan damage is included in the so-called "anterior agreement. This then gives you, the developing party, the opportunity to get involved in the planning damage procedure. That this can be useful is demonstrated by today's ruling by the Council of State (ECLI:NL:RVS:2017:2598).

In that ruling, there was a major difference of opinion between the appraiser hired by the municipality and the appraiser hired by the applicant for planning damage regarding the value of the applicant's property after the zoning change. The Council of State points out that appraisals should be reviewed with caution, and that in addition to the appraisal method, the expert's knowledge, experience and intuition are also important. Next, the Council of State indicates that in case an applicant for planning damage does not agree with the valuation of his property issued by the municipality, the expert hired by him will have to dispute that report and substantiate what the value is.

This was what the applicant for planning damages had done in these proceedings, and the municipality had then done little with that rebuttal. And that's where things went wrong for the municipality. The Division finds that the judgments of the expert hired by the applicant for planning damages are not implausible and adopts them. Therefore, the municipality or the developer should have refuted, in a substantiated manner, why the expert hired by the applicant for planning damage used incorrect assumptions.

The second element in this ruling, which comes into play in many planning damage proceedings, concerned the discussion of normal social risk. Normal social risk is generally expressed as a percentage of the value of the immovable property. Only any planning damage above that amount is eligible for compensation.

Normal social risk

In the aforementioned ruling, the municipality had indicated that due to the fact that the change of the zoning plan concerned a normal social development, there was a normal social risk and thus the damage as a whole was not eligible for compensation. In the opinion of the Council of State, this is too short-sighted. To determine the normal social risk, it is certainly important whether there is a normal social development, but this normal social development must also be in line with expectations. In that context, significance is attached to the extent to which the development fits in with the environment and the policy pursued by the municipality.

If it could have been made clear at the hearing that the development envisaged in the zoning plan does fit in with municipal policy and the structure of the surrounding area, the Council of State would have assumed a normal social risk much sooner.

Therefore, these are the points of attention for you. Get involved in the planning damage proceedings and make sure that reports are well substantiated and counter-reports are sufficiently contested in substance. An argument that plan damage or a large part of it falls under the normal social risk must also be well substantiated.

Quickscan zoning plan

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