Can a building code committee impose requirements on a building plan? And if so, what are those requirements? That question often arises in legal proceedings. A ruling from April 10, 2019(ECLI:NL:RVS:2019:1104) shows once again that a building standards opinion has its limits. The building possibilities of a zoning plan are (and remain) leading.
What was going on?
This ruling deals with two permits granted for the construction of two separate dwellings in Eindhoven. These are homes with a large building volume. One house has a building volume of 1165 m3. The other house has a building volume of 748 m3.
One appellant, probably a direct resident, disagrees with these permits. He feels that these homes are too massive. In his opinion, the dwellings violate reasonable standards of appearance. In his opinion, the building volume of the dwellings was improperly not included in the appearance test.
Welfare advice part of review, but not binding
A building plan must be tested against the building and use regulations of the zoning plan, but is also assessed in terms of its appearance. Therefore, prior to the decision to grant a permit, the building regulations are often reviewed.
In a previous blog I explained that it is not the case that an opinion on a building permit can entail an obligation to grant or refuse a permit. That decision is always up to the Municipal Executive. However, an opinion on a building permit is an interest to be considered by the Municipal Executive.
Welfare and zoning plan: zoning plan leading
The question in a building code review is often how far that review can go. After all, a zoning plan always includes building regulations as well.
It is established case law of the Division that a building standards test should in principle focus on the building possibilities offered by a zoning plan. The Division explains this because of the general nature of a building standards test. The building possibilities applicable to the land, the 'customization' included in a zoning plan, remain the starting point. A welstands judgment cannot (in principle) detract from those possibilities.
Options: more room for (negative) welfare advice
The Division did nuance this line somewhat some years ago. The more choice the zoning plan allows between different possibilities for realizing a building plan, the more room there is for a wealth assessment. The college then has
- with due observance of the principles of the zoning plan - more discretion to deem a building plan under review to be in conflict with reasonable standards of appearance in the context of the building standards test, without that judgment having to be deemed to result in an impediment to the realization of the building possibilities offered by the zoning plan.
However, it may follow from the regulations and the systematics of the zoning plan that a choice is not present, or only to a limited extent. This is the case, for example, when building options are detailed in the zoning plan. In that case, the plan is a compelling factor in the building standards test. The limit of a building standard test is then more likely to be exceeded.
Welfare advice cannot prejudice implied building possibilities
In this procedure, the zoning plan includes (explicit) rules about the building area, building percentage and building and gutter height. There are no (explicit) rules about the allowed building volume.
According to the appellant, therefore, the building volume should have been included in the building permit recommendation. After all, the zoning plan stipulates nothing about this.
The Division thinks otherwise. According to the Division, although the maximum allowable building volume is not included in the zoning plan, it does follow to a far-reaching extent from the plan rules on the building area, building percentage and building and gutter heights. The Department considers:
This means that the building volume is implicitly regulated in the zoning plan, so it should be respected in the wealth assessment.
The fact that the zoning plan in this case leaves room for diversity in building volume is irrelevant, according to the Division. A ruling that the requested building volume would be contrary to reasonable standards of appearance would mean that a building plan can only be permitted if the building possibilities of the zoning plan are not fully utilized.
A wealth test cannot require this. That is because it would lead to an obstruction of the realization of the building possibilities of a zoning plan. And that goes too far.
Conclusion
In this ruling, the Division once again clearly demonstrates that an assessment of a building permit cannot detract from building possibilities in a zoning plan. The rules in a zoning plan - and thus legal certainty - take precedence.
In doing so, the Division opts for a broad interpretation of the rules in the zoning plan, as shown in the blog about a November 28, 2018 Division ruling.
The Division is clear: not only explicit building regulations, but also (implicit) building possibilities that follow from those regulations may not be included in a building standards opinion.
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