'New urban development’ framework for small-scale developments: the sum of its parts.
In a decision dated 24 August 2016, the Administrative Jurisdiction Division of the Dutch Council of State (‘the Division’) clearly summarised when small-scale developments involve ‘new urban development’ within the meaning of Section 3.1.6(2) of the Dutch Spatial Planning Decree.
Case law on this topic is being given more and more shape, which certainly inures to the benefit of legal certainty.
What was the case about?
The Municipal Executive of Eijsden-Margraten (Limburg) granted an integrated environmental permit with project variation to expand an office building and to construct a car park with 21 parking spaces. The neighbours objected and instituted legal proceedings before the district court, successfully arguing that said construction constituted a new urban development as meant above. In the appeal phase, the district court rendered a reasoned ruling stating – in short –that, together, the expansion of the office building and the car park had to be seen as ‘a single coherent project’. Leaving aside the question of whether, given the scope of the expansion and based on the existing planning options, the expansion of the office building qualified as a new urban development, the district court held that the car park was not going to be constructed in an urban area and that, in and of itself, it concerned a non-limited change of use, notwithstanding the fact that it blended in with the landscape. As a consequence, the need for, and feasibility of, the entire project had to be examined based on the Ladder for Sustainable Urbanisation.
However, the Division ruled differently in the appeal proceedings. The Division first reiterated its established case law that
‘in answering the question of whether the development made possible by the envisaged integrated environmental permit constitutes a new urban development […], it must be determined as a whole the extent to which the integrated environmental permit, compared with the prevailing zoning plan from which it deviates, provides for a change in use and what spatial planning effect on the space the integrated environmental permit makes possible compared with the zoning plan’.
Next, the Division held as follows:
‘First and foremost, the project does not concern a new office building but the expansion of an existing office building and this expansion is planned for land with the designation ‘Office’. In the existing situation, parking spaces for the office building has also been constructed on land with this designation. The parking facility will be relocated. The old location will be a designated green area without buildings. In addition, the Division takes into account that the expansion of the office building would encompass 540 m² of gross floor area of office space, of which however, as was established at the hearing, approximately 260 m² would be above the ground and 280 m² would be underground. It was furthermore established at the hearing that the new parking spaces, which are planned for construction on land with the designation ‘Agricultural area with values’, ‘Value Beekdal’ and ‘Value Ecology’, would encompass a floor area of 588 m² and the paved access to these parking spaces would have an area of 24 m². The Division takes into account that the zoning plan for the ‘Outlying Areas of Eijsden’ allows for the construction of parking spaces on lands with the designations ‘Agricultural land with values’, ‘Value Beekdal’ and ‘Value Ecology’, provided that a permit required for works which change the land use but which are not building works is acquired. The reasoned planning exemption furthermore substantiates that the values to be protected will not be disproportionately affected by the construction of the envisaged parking spaces. That takes into account, inter alia, that the envisaged parking spaces will, in accordance with the landscape outline plan that is part of the reasoned planning exemption, be blended in with the landscape by means of a mayflower hedge and trees. Moreover, the Province has approved the project.’
‘Given the small-scale building with a limited spatial atmosphere that makes the project possible at a location where, in the existing situation, there are parking spaces for the offices constructed on those lands and the limited scope and spatial atmosphere of the car park, seen in light of the objective of Article 3.1.6(2) of the Dutch Spatial Planning Decree, the envisaged development is not so substantial that it must be regarded as a new urban development. The district court overlooked this.’
In other words: the Division examined all existing spatial planning construction and usage options and, in that context, took into consideration 1) the small-scale nature of the building (or expansion of the building, 2) the limited size of the car park and 3) the spatial atmosphere of the car park and concluded that the case at hand did not constitute a 'substantial' new development. One important element that the district court mentioned and that the Division subscribes to is the fact the office building and the car park must be seen as a single coherent project, meaning that all individual parts ‘count’ when determining whether the development qualifies as a new urban development.