The essence of transitional law is that lawful use that exists on the reference date may be continued and changed even if it contravenes the rules of the new plans, provided that the nature of the deviation is not increased. The last-mentioned aspect often proves to be a subject of discussion, as was the case in the 8 June 2016 decision issued by the Administrative Jurisdiction Division of the Dutch Council of State. On the face of it a café is a café.

However, expanding the business hours of a café permitted under the transitional law as well as increasing the size of the terrace belonging to the café and occasional festivities after the reference date led to the Division ruling that under those circumstances the use for hospitality activities was intensified, to which the transitional law did not apply. In other words: the plan’s deviation increased in terms of its nature and/or intensity, which is not allowed.

In short, both government authorities and owners should not underestimate how restrictive the transitional law in the new planning process is. The scope of the protection afforded by transitional law is far less expansive than the possibilities for use of a positive designated use in a zoning plan.