The Administrative Jurisdiction Division of the Council of State has rendered a decision containing an overview of the ‘Ladder for sustainable urbanization’. That decision contains a broad outline of the case law of the Division concerning the requirements that must be met by a zoning plan or an integrated environmental permit that deviates from the zoning plan in order to enable new urban development.
Since the Ladder’s entry into force on 1 July 2014, most spatial planning proceedings invoke conflict with the Ladder for sustainable urbanization. The core of the Ladder for sustainable urbanization is aimed at careful use of space and consists of going through a number of steps where the existing need for new urban development is substantiated based on objective data. For that reason, the explanatory notes to a zoning plan must describe that (a) the intended urban development satisfies an actual regional need; (b) if an actual regional need is evident, it must also describe the extent to which that need can be realised within the existing urban area in the region in question by using available land for restructuring, transformation or in other respects, and (c) if the description shows that the urban development cannot take place within the existing urban area in the region in question, it must describe the extent to which that need is met at locations which, using various forms of transport, are suitably accessible or will be developed as such.
In its decision of 28 June 2017, the Division outlined the most important decisions rendered in previous years regarding the Ladder, for example the interpretation of significant terms such as 'urban development', 'new urban development' and 'existing urban area', but also about the judicial review of the need and the application of the relativity requirement in this respect. For practitioners, the decision offers a good reference point for applying the Ladder for sustainable urbanization.
It is furthermore important to note that the Ladder was revised effective 1 July 2017 and that the new Ladder is already applicable in pending cases. In this connection, see also our previous blog on this topic. A significant portion of case law formed since 2014 will continue to be relevant after 1 July 2017. In short, the reference point offered will remain relevant to practitioners after that date.