Loss or damage resulting from the possibilities for real estate-related construction or use no longer being available
If you expect that possibilities for construction or use will no longer be available in a new zoning plan, you must consider in a timely fashion whether you wish to avail yourself of the disappearing possibilities.
Under a new zoning plan, the designation 'horeca' [hospitality] for a building in Apeldoorn would cease to apply. At the time, the owner of the building was leasing it to a restaurateur and claimed compensation for loss resulting from government planning decisions on account of a limitation of sales of approximately EUR 12,000,000 over the planning period of 10 years.
The Municipal Executive rejected the application for compensation for loss resulting from government planning decisions, since the negative change in planning was said to have been foreseeable in a preliminary draft of the zoning plan. The owner had had the opportunity for a period of approximately 16 months from the moment that that preliminary draft had been made available for examination until the draft zoning plan was made available for examination to make use of the construction possibilities that were going to disappear, but he failed to do so. He could, for example, have applied for a building permit to expand the hospitality establishment.
In its decision of 20 July 2016, the Administrative Jurisdiction Division of the Dutch Council of State held that the owner did in fact have to bear the loss resulting from government planning decisions on the grounds of his 'passive acceptance of risk'. A reasonably thinking and acting owner should have taken into account the possibility that the planning situation at the location of the building was going to change in a manner that was not in his favour.
The only instance in which this risk could not have been raised as a defence is if concrete action had been taken under the old planning regime to realise the planning possibilities that were going to disappear, such as applying for a building permit to expand the hospitality establishment. However, in the case at hand, the owner had not made any concrete attempts. His assertion that no application for a building permit had been submitted on account of the crisis and the risk that those permits would therefore be of no value was of no avail to him.
Thus, in these cases, one bears the risk of failing to take action.
