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  • Public law
  • 23-06-2016

The ladder for sustainable urbanization has been strongly juridified since section 3.1.6(2) of the Dutch Spatial Planning Decree entered into effect on 1 October 2012.

Luckily, this was not quite the intention, which is what I was told last year by the Dutch Ministry of Infrastructure and the Environment when I gave a presentation at the Dutch Council of State on this topic. In the meantime, in response to signals received from those facing this issue in practice and a motion submitted by Members of Parliament Veldman and Ronnes, Minister Schultz van Haegen presented a proposed amendment to the Ladder to the House of Representatives on 23 June 2016.

In short, the proposed amendments concern:

  • simplification by letting the ladder treads go (which with the benefit of hindsight are better suited to be included in explanatory notes or Guidelines)
  • limiting the extensive 'ladder substantiation' to new urban development outside the existing urban area 
  • replacing the term current regional need by the simpler term 'need'
  • adding a new component, making it possible to prevent a double 'ladder test' in the case of a flexible planning process (for instance amendment and detailed zoning plans)

This makes it clear to everyone that we must stick to the basics. Is a new function needed and is the plan or project feasible? And will unacceptable spatial consequences arise as a result? The Division has assessed this in the same way for many years. The economic impact of a new facility is irrelevant where competition is concerned, since the Dutch Spatial Planning Act covers spatial planning rather than economic planning (for a further explanation see also, for example, section 3.1.6(4) of the Dutch Spatial Planning Decree). However, the latter tends to be forgotten, especially by provinces, which at times fail to take a step in translating the economic impact of a facility into spatial consequences, with all due consequences. In my opinion, the Division has an important role to play in this matter (set course by the legal frameworks).
In short, the need is assessed as follows. If the market offers room, a development will generally be feasible (quantitative need). If the market offers no room, the question arises of whether a new need will be created due to the unique qualities of a new formula or function on account of – for instance – modern supply (qualitative need). This need not be strictly separated: a quantitative and qualitative need may also exist on balance. The rise of Bauhaus, a DIY and garden market, is a good example of the latter. The economic impact of a new development is relevant only to the question of whether this impact can be such that unacceptable spatial consequences arise for the quality of life and business climate, such as unacceptable vacancy. To say the least, it is, for example, not so nice for the local business climate if an entire retail strip 'collapses' as a result of a new facility (see also under the old law the well-known Emmeloord matter). Conversely, a development that might have a negative economic impact may not be refused at a certain location if no relevant spatial distinction exists between the spatial effect caused by that development in comparison with, say, other functions that are permitted at that location. Important: that certain negative effects will arise as a result of an envisaged development is not the standard and that could very well be the case. It is up to the competent authorities to determine whether the consequences are unacceptable, although this must of course be substantiated properly. It concerns a requirement to give reasons which – if applied properly – never or hardly ever leads to a plan or project being unfeasible (I at least do not know of any such examples).

Naturally, the elaboration of section 3.1.6(2) of the Dutch Spatial Planning Decree also contains other elements that have caused complications which the legislative proposal is intended to counter (such as the omission of the words "current" and "regional", preventing double research costs). The legislative proposal furthermore stresses once again that the premise is: careful use of space. It must be stated clearly that, in principle, a new urban development will be realised in an existing urban area and where this is not possible, it must be explicitly substantiated why this is not possible.
In short: the basis for the assessments relating to the need and the feasibility of a development is not new. We must keep that basis at the forefront of our minds and apply it consistently. We must also do so after the new regulation enters into effect. In doing so, not only the spatial planning interest but also the consumers’ interests will be accommodated and modern developments will not be unnecessarily limited in an economic sense.

Note: from mid-July until mid-September 2016 an Internet consultation will be held about the section. The minister seeks to have the amended Ladder take effect in 2017.

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