After three turbulent years and a great deal of case law, the new Ladder for sustainable urbanisation will enter into effect in the Netherlands on 1 July 2017.
A quick search turned up 290 hits for Council of State decisions since the previous Ladder entered into effect on 1 July 2014. The flood of cases in which the Ladder was invoked led to its being judicially curtailed with regard to competitors. There were many other aspects of the Ladder regarding which the courts were called on to interpret and clarify the phrasing used in the statute. Through its publication in the Bulletin of Acts, Orders and Decrees [Staatsblad] on 12 May 2017, we are now certain that the new law may also be invoked in ongoing cases with effect from that date. After all, the Explanatory Memorandum states that if a spatial planning decision is nullified, for example because it contravenes the duty to provide grounds, the legal consequences of that decision may be allowed to stand if the court believes that the unamended adoption of the spatial planning decision actually would, under the new law, comply with the duty to provide grounds. Since 1 July 2014, the explanatory notes to zoning plans that enable new urban development have been required (a) to describe how the proposed urban development would meet a current regional need; (b) if a situation involves a current regional need, to describe the extent to which that need can be met within the existing urban area of the relevant region by utilising available land for restructuring, transformation, or otherwise, and (c) if the description shows that the urban development cannot be realised within the existing urban area of the relevant region, to describe the extent to which that need can be met, using various means of transport, at locations that can be suitably made accessible or developed as such. This was an application of the well-known SER Ladder, focusing on the careful use of space and ensuring that the right function is in the right place.
The new statute drops the requirement to prove a current regional need. Just answering the question of what constitutes the region could take countless hours, both in and out of court. Likewise, the rungs of the Ladders are less clearly delineated. Now the explanatory notes to a zoning plan that enables a new urban development must only describe the need for that development and, if the zoning plan would make that development possible outside an existing urban area, provide grounds indicating why that need cannot be met within the existing urban area. This can be postponed if a situation involves a power to make amendments or an obligation to work out the details.
The presumption is that a new urban development must meet a need and that, in principle, that need must be able to be met in the existing urban area. The objective is to use space carefully and combat both overplanning and the negative spatial planning consequences caused by vacancies. There is an expectation that the need will be substantiated and considered at the level of the catchment area of the development. According to the Explanatory Memorandum, this means that the nature and scope of the development will determine the scope of the description and consultation regarding the need. From that perspective, therefore, this will not eliminate discussion of the area within which the effects will be felt, just that the framework within which that discussion must take place is put in less stringent terms. What certainly is clear is that not every spatial planning need is a ‘regional’ need that must be coordinated in a regional context – in the sense of supra- or inter-municipal coordination. Certain developments will not require supra-municipal coordination. That may be the case if an urban development will have strictly local spatial consequences. In short, the straightjacket may have been unbuckled, but that does not release us from the obligation to study the effects. In that sense, we are essentially back where we were in 2014, although the intervening years have left their mark on our ideas. To that extent, the case law referred to above could still nevertheless provide guidance for applying the new Ladder. That will at least be the case with regard to how we define an existing urban area or what constitutes a new urban development. In addition, more clarification will be provided in the new Guide. We are now left with hoping that that new Guide will allow sufficient leeway for discussion and not just be fodder for still more litigation. It would be wise to keep these points in mind when clarifying the various topics.