Anyone who regularly uses the www.ruimtelijkeplannen.nl website will have noticed it once in a while: a management by-law [beheersverordening] applies to a location, supplemented or amended by one or more facet and/or umbrella zoning plans [facet- en/of paraplubestemmingsplannen] adopted subsequently (for example for parking). On 22 January 2020, the Administrative Jurisdiction Division of the Council of State (“the Council of State”) rendered a ruling that tightened up the relationship between a management by-law and an umbrella zoning plan: the umbrella zoning plan concerned was nullified, because it could not have been the municipal council’s intention for the management by-law in force for the location to lapse through adoption of the umbrella zoning plan. The question that remained was whether the ruling meant that existing management by-laws applying within the planning area of an umbrella zoning plan that was adopted later (and irrevocably) ceased to apply. In a ruling dated 28 October 2020, the Council of State provided a practical, workable solution.
By means of an umbrella zoning plan, the municipal council can simultaneously revise one or more parts (or “facets” also referred to as “facet zoning plan” [facetbestemmingsplan]) of several or all plans that apply within the territory of the municipality, usually including the management by-law(s). For example, municipalities have made frequent use of this method with regard to the parking aspect, after rules relating to parking were no longer permitted to be regulated in the municipal building regulations.
The umbrella zoning plan (or facet zoning plan) construction is not regulated in the Spatial Planning Act [Wet Ruimtelijke Ordening, “Wro”] or in other legislation and regulations, but it is now a generally accepted and widely used instrument. An umbrella zoning plan is adopted in accordance with the rules that apply to “ordinary” zoning plans (for example making it available for inspection, the option for anyone to submit their views, and the possibility of submitting an appeal to the Council of State). So although an umbrella zoning plan is an extra-statutory instrument, the Wro rules with regard to zoning plans apply. But a bit of a problem does arise in relation to the management by-law.
Pursuant to Section 3.38(1) Wro, for those parts of the territory of the municipality where no spatial development is foreseen, the municipal council, instead of adopting a zoning plan, may adopt a management by-law which regulates management of that area in accordance with the existing use. Section 3.39(2) Wro provides that at the point when a zoning plan enters into force for an area to which a management by-law already applies, the management by-law – in so far as it relates to that area – lapses. In its ruling of 22 January 2020, the Council of State found that this rule should also apply to an umbrella zoning plan:
“This would mean that the management by-law ‘Buitengebied Noordwest" would in any case have lapsed in so far as the present umbrella zoning plan amends the management by-law. That was not the council’s intention.” (Office translation)
This ruling produced a lot of comment and sparked debate on what the Council of State meant by the passage: “in so far as … amends”. It was argued, on the one hand, that management by-laws would only have lapsed with regard to what the umbrella zoning plan regulates. On the other, it was argued that the management by-laws would have lapsed in their entirety pursuant to Section 3.39(2) Wro. The Council of State’s Preliminary Relief Judge acknowledged this discussion in his ruling of 6 April 2020 by finding:
“The Council of State's ruling of 22 January 2020 (ECLI:NL:RVS:2020:217) does not provide a definite solution to this because it only rules that the management by-law will in any event lapse in so far as the umbrella zoning plan amends it. That situation is not relevant here because the umbrella zoning plan refers only to parking, regarding which there are no provisions in the management by-law. The Preliminary Relief Judge considers that to render a ruling on the interpretation to be given here of Section 3.39(2) Wro would be too far-reaching a step in these proceedings, and that the appropriate place for dealing with that issue is in the proceedings on the merits.” (Office translation)
The Council of State provides clarity in its ruling of 28 October 2020 (The ruling is in the proceedings on the merits in the case on which the Preliminary Relief Judge ruled on 6 April 2020). For the first time (as far as we are aware) the Council of State defines the nature of an umbrella zoning plan as “a non-independent spatial plan with an integral planning arrangement” [niet zelfstandig ruimtelijke plan met een integrale planologische regeling]. The Council of State thus seems to recognise that an umbrella zoning plan is an extra-statutory instrument that cannot simply be brought within the scope of the Wro. That also applies, according to the ruling, to interpretation of Section 3.39(2) Wro. Contrary to what the ruling of 22 January 2020 seemed to suggest, the Council of State ruled this autumn that the management by-law did not lapse if an umbrella zoning plan for the same area was subsequently adopted. Indeed, it is in this case the umbrella zoning plan that is declared not to be binding in so far as it relates (or related) to areas for which a management by-law applies. The Council of State found:
“All the more so because there should be no misunderstanding as to which planning regime applies, the umbrella revision should be considered, to that extent, as having no binding effect. If the municipal council still wishes to add parking regulations to the management by-laws within the municipality, it can do so either by means of separate amendment decisions or by adopting, in one go, an umbrella revision for all management by-laws within the municipality, as the Council of State is aware has also been done in other municipalities.” (Office translation)
It therefore follows from the ruling of 28 October 2020 that an umbrella zoning plan/revision, in so far as it relates to the planning area of a management by-law, cannot apply to it and is to that extent non-binding. Additionally, the Council of State defined the nature of the extra-statutory construction of the umbrella zoning plan as “a non-independent spatial plan with an integral planning arrangement”. The Council of State would thus seem to have opted to distinguish umbrella zoning plans from “normal” zoning plans. This means that where Section 3.39(2) Wro refers to “zoning plan”, that cannot also read as “umbrella zoning plan”. With its ruling, the Council of State concurs with how umbrella zoning plans are viewed in actual practice. For the time being, the management by-law “wins out” over the umbrella zoning plan.