A building plan must be tested against the building and usage rules of the zoning plan, but must also be assessed with regard to the building's appearance. A negative recommendation regarding the appearance of the building is in fact a ground for refusal of the environmental permit. It becomes interesting if a negative recommendation on the appearance of the building is issued for a building form that in itself fits within the zoning plan. In a ruling on November 28, 2018, the Division ruled that the curb appeal test may not lead to the rejection of a building plan if that negative advice is based on the shape of the roof, while the zoning plan already prescribes a maximum gutter and ridge height.
Scope of welfare test
It is established jurisprudence that the building standards test must in principle focus on the building possibilities offered by the applicable zoning plan. It follows from the general nature of the building standard requirement that the building possibilities applicable to the land must be used as the starting point for the building standard test. It may happen that the zoning plan leaves more choice between the various possibilities for realizing the building plan. In that case, the college has more discretion - taking into account the basic principles of the zoning plan - to deem a present building plan in conflict with the reasonable requirements of prosperity in the context of the building standards assessment, without that judgment having to be deemed to lead to an obstruction of the building possibilities offered by the zoning plan. However, if it follows from the regulations and the systematics of the zoning plan that such a choice is not present, or is present only to a limited extent, that design constitutes an imperative in the case of the wellbeing test. In that case, therefore, the limit of the building standards test is more likely to be exceeded.
Rejected building plan
The building plan in the Nov. 28 ruling was rejected because the outbuilding to be constructed should be a derivative of the main building and the submitted building plan had a much steeper roof pitch by comparison. Moreover, this building plan could set a precedent.
Zoning guide
The applicable zoning plan did not prescribe a specific roof pitch or roof shape. The zoning plan did prescribe maximum gutter and building heights.
The Division finds that those rules also implicitly show a regulation on roof pitch. After all, the roof pitch is influenced by the difference between the gutter and building height, according to the Division. The Division therefore finds that the building standards test goes beyond the aforementioned framework and in fact makes something impossible that is already permitted under the zoning plan. The Division thus finds that the choice the initiator still has on the basis of the zoning plan rules is apparently so small that the building standards test can no longer consider the roof shape.
This is quite extraordinary. The regulation in the relevant zoning plan does indeed say something (implicitly) about the maximum roof pitch, but no minimum roof pitch or roof shape is prescribed, for example. Moreover, the regulation of a gutter and building height still says nothing about, for example, the maintenance of a certain streetscape by roofs that face the same direction. In this ruling, the Division assumes rather quickly that a zoning plan regulation offers so little space that there is no room to limit the possibilities permitted by the zoning plan by means of a building standards test.
Legal certainty vs. welfare
Such an approach does offer more certainty for initiators and developers than a broad standards test. After all, the building standards test is partly subjective, and the starting point is precisely that on the basis of the zoning plan it should be clear what one is allowed to build somewhere. If a building plan that does fit into a zoning plan is then killed with a rather subjective argument about the level of development, this does give rise to a certain feeling of injustice. In the context of legal certainty, this Divisional decision is therefore very understandable.
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