Fortunately, the market is picking up. More and more building initiatives are getting off the ground, and the desire for quick completion and delivery is as great as ever.
As you may be aware, several years ago the legislature introduced a (short) permit procedure (in principle 8 weeks) to enable transformation of vacant buildings within a short period of time. The possibilities for realizing certain extensions with a short procedure have also been broadened. These are so-called "minor cases. Initially, this shortened procedure was introduced to stop the increasing vacancy rate, but now it appears that short permit procedures remain highly desirable even in a time of economic recovery. A shovel into the ground quickly.
In recent years, there has been frequent litigation about what is possible within this short procedure. In a recent ruling on April 25, 2018, the Administrative Law Division juxtaposed some of its rulings on the scope of (building) possibilities within this procedure.
So it's high time to list those options for you.
A completely new school building licensed within 8 weeks?
The case that the Division has taken the opportunity to lay out its case law on the bread-and-butter rule concerns a permit for a new elementary school in Amsterdam.
A school building had been demolished at this location several years ago. Since then, the plot has been fallow.
The permit to be adjudicated by the Division relates to a new elementary school consisting of two stories and pent roofs. The dimensions of the building are approximately 55 meters by 25 meters. Because the building plan does not fit into the "Buikslotermeer II" zoning plan, the North district must grant a permit to deviate from the zoning plan.
Some local residents do not agree with this permit, arguing that the impact of the school building on site is too great. They argue to the Division that it is not possible to permit a completely new school building with a short (breadcrumb case) procedure.
Principles for being able to apply the 'blanket case' rule
In this ruling, the Division lists a number of principles from its earlier rulings. This provides practical assistance and shows that there are many possibilities to get a large building plan approved with a short procedure. The Division lists the following principles in this ruling:
- The question of whether a permit can be granted is not limited to "planologically subordinate cases. This has been stated many times by the Division and is also reiterated in this ruling. The realization of an elementary school with a size of 55 meters by 25 meters can also be authorized with a "minor case" provided the other legal requirements are met.
- The non-limited circumstances regulation (Article 4, opening words and first paragraph of Annex II Bor) is not limited to the expansion of an already existing building. It is important that the legal concept of "accessory building" is met. That is also the extension of a main building. And that main building does not have to be there yet. What matters is that the main building is permitted under the zoning plan. A nuance that does need to be made here is that if there is a completely new main building for the purpose of a use (for example, retail trade instead of residential) that is not permitted under the zoning plan, the Division seems to be of the opinion that this is not possible under the 'kruimlgevallenregeling' .
- The term "extension" should be interpreted broadly. This is because the legislator has deliberately chosen to broaden the possibilities compared to the previous regulation. This means that, for example, the realization of basements and additions and extensions on higher floors are also included.
- The part where an "expansion" takes place does not have to be in accordance with the zoning plan. Again, according to the Division, this can be inferred from the legislature's deliberate widening. In this case, the permit deviated from the allowed building heights and the school building was partly situated on land where no construction was allowed. This is therefore possible according to the Division. With this last point, however, it must always be kept in mind that the main building itself and its use must be permitted under the zoning plan. It seems to follow from lower case law that at least 50% of the main building must be permitted under the zoning plan.
In the ruling, the Division runs through these criteria and finds that the building plan meets them. The North District therefore chose the correct permit basis and rightly followed a short permit procedure. A completely new school building was thus licensed within eight weeks!
This ruling makes it clear once again that (very) extensive building plans can also be authorized with a short procedure. There are therefore certainly opportunities there.
Municipal policy?
Now that it is becoming clear to more and more municipalities that the 'breadcrumb case' regulation offers ample opportunities for developers, it is noticeable that many municipalities are moving to draft policies, which set further conditions when a permit can be granted. It is therefore always advisable to check whether specific municipal policies apply in your municipality if you suspect that a building plan can be granted with a 'crumb case'.
However, even if municipal policy initially appears to stand in the way of your building plan, this is not necessarily the case. A good example of this can be found in a recent June 27, 2018 Division ruling on the transformation of a warehouse into a sandwich store in Pannerden.
The municipality's policy conditioned - in short - that a permit be granted for other types of use only if it was "necessary. According to competing hospitality businesses, there was no "necessity to a sandwich store," citing the dictionary definition of "necessity.
The Division does not go along with this and indicates that a 'necessity' does exist. The necessity is in fact dictated by a 'compelling spatial interest'. That interest lies in maintaining the livability of small centers. A sandwich store increases the attractiveness and liveliness of the center in Pannerden, which constitutes a planning improvement. The permit is therefore in line with municipal policy and was rightly granted.
Even though at first glance it may seem that municipal policy will stand in the way of your building plan, always stay creative. After all, every (legal) rule must be interpreted. And in that interpretation there can be quite a few opportunities.
Quickscan zoning plan
Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.
