Concerns about the vacant premises – which no longer meet the needs of former car dealerships – were expressed on the BNR News radio station and taken over by other media too. BOVAG’s appeal wasn’t unexpected. It illustrates the constantly recurring tension between legal certainty as regards the permitted uses of a site and the need within the market for zoning plan flexibility. Zoning plans nowadays need to perform a balancing act between certainty on the part of the owner and third parties (including residents) regarding what use is permitted and, on the other hand, the scope those plans need to offer for new developments and initiatives by owners or the authorities. Municipalities are often afraid of losing control if flexibility is permitted, meaning that zoning plans are like a tight layer of cellophane across the existing buildings and uses. That may work just fine, but the consequence is that the municipality must be prepared, when the market is changing, to take control, in consultation with the owner, when that is required. If that does not happen, then it is often unnecessarily frustrating for the owner of a building who wants to keep pace with the trends in society. The result is a vacant building that cannot pay for itself, leading to it becoming dilapidated. Where a better quality environment is concerned, that’s in nobody’s interest.

Are worries about loss of control justified? From “no, unless…” to “yes, if…”
Are municipalities’ worries about loss of control actually justified? Platform31 – the knowledge and network organisation for Dutch cities and regions – already concluded in 2013 that they aren’t. The current range of spatial planning measures already offers sufficient scope for flexibility. It’s therefore important that authorities no longer need to act to check plans but as “networkers” so as to bring initiators together, connect up the parties, and encourage them to invest in order to create transformations. The zoning plan should be viewed simply as a means for guiding this process, says Platform31. This approach is in line with the legislation operation that is still ongoing due to the introduction of the Environmental and Planning Act [Omgevingswet] in 2019. That piece of legislation foresees a different role for the authorities. This new role is reflected in the two guiding principles of the Act, namely to ensure quality and to provide scope for development. One important component is trust. Trusting the initiators means that the new system has to be inviting as regards new initiatives. Our mind-set needs to shift from “no, unless…” to “yes, if…”. Where possible, rules need to provide scope for individual ideas and solutions. Mind you, the government doesn’t mean that there should be unlimited freedom. What it is in fact aiming for is a shift in responsibility and greater control by the market. Where necessary, the authorities will formulate the objectives but it will be up to the market to determine how to achieve them.

Trendsetting thinking
Getting back to those vacant car showrooms, we must realise that some trendsetting thinking is needed as regards what we consider – now and in the future – to be responsible uses at peripheral sites. We need to abandon the beaten path that dates from thirty years ago. Transforming the periphery of a town can also provide more space within the town for other functions. We have to dare to widen our horizons so as not to unnecessarily restrict ownership and competition. We therefore need to work together on this and to make full use of all the options that the legislature has given us.

Our road map for flexibility: boldness and trust
The current legislation already provides ample opportunities for flexibility as regards meeting society’s needs while at the same time guaranteeing spatial quality. It’s now the turn of initiators to think carefully and to investigate what spatial planning changes are needed for their land and the structures situated on it. After that, it will be the turn of the authorities to consider whether the change involved contributes to spatial quality and is thus in line with good spatial planning. That involves – and will continue to involve – a complex, integrated weighing up of the various interests. That will naturally require dialogue and effective cooperation with the initiator and if necessary, depending on the spatial impact, with local stakeholders. Consideration needs to be given to what the concept of peripheral retailing should involve nowadays, given that for the past 30 years that concept has not moved with the times and is still continually interpreted in a restrictive manner. With a bit of boldness and trust in the initiator, it will be possible to extend the use options for a vacant car showroom for which no use has yet been found due to restrictive zoning, and to do so within the existing legal options within 8 weeks (for example by means of Section 4 of Schedule II to the Environmental Permitting Decree [Besluit omgevingsrecht, “Bor”). That is extremely fast. We understand better than anyone that a transformation sometimes requires more than 8 weeks. Nevertheless, temporary use for a year (for example by a pop-up restaurant or gym) can quickly be permitted, thus preventing the premises from standing vacant and becoming dilapidated. This can then provide scope for the local authority, the initiator, and local stakeholders to jointly come up with a different option for long-term use. In short, a bit of boldness and trust mean that a lot is already possible. We’d be only too happy to help you turn an obstacle into an opportunity.

New way of thinking and acting in 2019
From 2019 on, the Environmental and Planning Act will demand a new way of thinking and acting. It’s therefore logical for us to already start working together. Anne-Marie Klijn (Public Law partner) was a member of the Minister’s Advisory Committee on the new act, and was closely involved in drafting it. NautaDutilh is therefore currently advising authorities and businesses on the enormous changes, consequences, and opportunities that the act will bring about. Everybody is getting ready. Don’t hesitate to contact us for more information.

Read more in the press (available in Dutch):

Veel autoshowrooms in Nederland staan onnodig leeg (BNR)
Bovag: veel autoshowrooms staan onnodig leeg (FD login required)
Veel autoshowrooms staan onnodig leeg (Telegraaf)
Onderzoek flexibele bestemmingsplannen (Platform31)