On 14 February 2014 the municipality granted a permit to construct a Lidl supermarket at a peripheral location in the Municipality of Nijkerk (Province of Gelderland). However, the Spatial Planning Regulation for Gelderland 2011 (‘SPRG 2011’) of the Province of Gelderland stated that establishing retail trade food, beverage and tobacco outlets at peripheral locations was not permitted in a zoning plan.

For that reason, the appellants filed a request for an 'exceptive review', which are proceedings conducted against an integrated environmental permit in which the applicability of the rules set out in the prevailing zoning plan can be addressed. In the case at hand, it was argued that the rule set out in the zoning plan conflicted with higher legislation – SPRG 2011 – and that consequently the rule had to be regarded as non-binding. The non-binding nature of such a rule may be invoked where it is evident that the rule conflicts with higher legislation.

According to the decision, the Council of State felt that the ban on establishing retail trade food, beverage and tobacco outlets at peripheral locations as specified in SPRG 2011 was sufficiently specific to conduct an exceptive review of the zoning plan regulations in relation to SPRG 2011. However, the rule was not held to be non-binding force because it was not evident that the rule set out in the zoning plan conflicted with SPRG 2011.

How did the Council of State arrive at this decision? SPRG 2011 defined a peripheral location as a location outside existing or designated shopping areas. As such, the discussion at the hearing addressed the question of whether or not the location was in fact located outside an existing or designated shopping area. In the end, the Council of State held that it was not evident that the plot of land was situated outside the existing shopping area because neither SPRG 2011 nor the explanatory notes to that regulation explained in more detail how the term ‘existing shopping area’ should be interpreted, and that, consequently, the regulation did not provide a definitive answer to the question of what types of shops are eligible for the purposes of determining whether a plot of land is situated in an existing shopping area.

So where do we go from here? The Council of State’s decision is highly remarkable. Was the term ‘existing shopping area’ really so difficult to interpret? This was not the first discussion to be held about existing shopping areas. The question is why the Council of State did not interpret the term in accordance with everyday language, as it had done on several previous occasions.

Whatever the case may be in terms of substance, the decision will have a great impact on existing practice. The prevailing Spatial Planning Regulation for Gelderland still does not clearly define the term ‘existing shopping area’, but establishing retail trade food, beverage and tobacco outlets at peripheral locations is still prohibited. However, if we follow the Council of State’s decision, regular retail trade is also allowed at locations in Gelderland where existing peripheral retail trade is also established.

Read the entire decision here. (Dutch only)