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  • Public law
  • 27-10-2016

Primacy for taking decisions pursuant to the Dutch Spatial Planning and Development Permits (General Provisions) Act [Wet algemene bepalingen omgevingsrecht] – more commonly known as the WABO – rests with the Municipal Executive.

While this is nothing new, many people do not realise that the fact that a building has national monument status may not stand in the way of it being demolished. Municipal Executives may even deviate, if there are sound reasons for doing so, from a negative formal opinion issued by the Minister – in this case the Netherlands Cultural Heritage Agency – with regard to the proposed demolition of a national monument. This fact was recently revealed in a decision rendered on 13 October 2016 by the Preliminary Relief Judge of the Administrative Law Division of the Dutch Council of State, the central issue of which was the partial demolition of the former studio building of the Dutch KRO network.

Despite the Agency’s negative formal opinion, the Preliminary Relief Judge’s decision on appeal held that the District Court properly found that the Municipal Executive’s weighing of the interests at stake was not careless or unreasonable. Although the Municipal Executive acknowledged that the building’s value as a monument would be lost, this was considered acceptable because the new blueprints would meet the urban design requirements and preserve the building’s architectural qualities. Given the discretionary powers conferred upon the Municipal Executive in this regard, the Preliminary Relief Judge prudently reviewed the Municipal Executive’s weighing of interests. In this case, the Municipal Executive was held to have acted correctly by taking into account the fact that degeneration, dilapidation, and socially problematic situations would be the likely results of the property’s long vacancy. The opinion emphasised the fact that the weighing of interests thus went beyond assessing whether the property’s value as a national monument outweighed the interest in the proposed demolition. The property’s value as a national monument had to be properly and carefully weighed against the interest in demolishing the property and/or affecting the monument.

In short, this decision again shows that the sometimes persistent belief that the interest in retaining a national monument will always prevail does not always hold true. That does not diminish the Municipal Executive’s duty to properly and carefully weigh all of the relevant interests. In that respect, the Municipal Executive may – if there are sound reasons for doing so – deviate from a negative formal opinion issued by the Agency.

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