Minor exemption in raising a building: Council of State clarifies the definition of 'extending the main building'
In a ruling of 16 November 2016, the Administrative Jurisdiction Division of the Council of State clarified the scope of what is referred to as the 'minor exemptions arrangement' ('kruimelgevallenregeling') for the extension of buildings.
What was going on?
The Halderberge Municipal Executive had granted an environmental permit to Stichting Bernardus Wonen for the construction of a complex consisting of fifteen apartments ("De Rozenhof"). The intention was to build a four-storey building with a flat roof, even though the zoning plan required a sloping roof. An extension of the building volume was therefore involved that was contrary to the zoning plan.
On appeal, the District Court ruled that this building plan could only have been granted by means of a project deviation. This is the weightiest category of deviation from the plan for which an extensive procedure applies (26 weeks) and a sound spatial substantiation is required.
However, according to the Administrative Jurisdiction Division, the District Court failed to recognise that the construction of the apartment complex with a flat roof, as opposed to a sloping roof as required in the zoning plan, can be considered as an extension of a main building and therefore as an ancillary structure as referred to in Article 1, paragraph 1, appendix II of the Dutch Environmental Permitting Decree (Besluit omgevingsrecht), referred to hereafter as “the EPD”. On this basis, the environmental permit could be granted with the application of a minor exemption (kruimelafwijking) pursuant to Article 4, paragraph 1, of the EPD. This involves a standard procedure (8 weeks) and is simply a weighing of interests within the context of preserving a satisfactory living environment (and an additional sound spatial substantiation is not required either). This makes a substantial difference when it comes to the planning and investigation obligations (and therefore the costs, too).
The Division also makes clear, and rightly so in our opinion, that no restriction is included in the definition for extending a main building, in the sense that the extension must be able to be distinguished from the rest of the building from a functional or architectural point of view. The Division also repeats its legal precedent that the arrangement does not contain the restriction that the extension must relate to a pre-existing building.
In short, it is therefore made crystal clear once more that the raising of building, pre-existing or otherwise, within a build-up area is possible with the application of the minor exemptions arrangement. The minor exemptions arrangement can, however, be restricted by municipal policy. If this is the case, no deviation from the plan is allowed that is contrary to such policy (i.e. no project deviation either).
