Spatial planning; zoning and exemptions

In a small country like the Netherlands, the space in which to build, live and work is limited. Spatial planning is the part of administrative law which concerns the allocation of space in our country. The most important tool with which spatial planning is arranged at a municipality level is the zoning plan. A zoning plan can be derogated from by means of an exemption.

Coming into effect of the zoning plan

The zoning plan regulates how land is used. Zoning plans record what exactly is permitted to be built and which activities may take place on the land. The objective of the zoning plan is 'good spatial planning'. There are several instances in which interested parties can exercise influence on the zoning plan during its coming into effect. Not everything can and is permitted to be arranged by means of a zoning plan. In all events, anyone can submit their point of view on the draft of the zoning plan. If the municipal council does not respond to this within six weeks, you can lodge an appeal against the zoning plan with the Council of State, provided that you are an interested party. Zoning plans are recorded in principle for a period of ten years. The intention of the (planning) legislators is that a zoning plan will not need to be amended in the interim during this period. However, practice requires more flexibility. Planning applications must in principle comply with the applicable zoning plan, but with exemptions and other procedures, derogations from the zoning plan are still possible.

Derogation from the zoning plan

The municipality has, on the basis of the Spatial Planning Act, a number of flexibility instruments with which it is able to derogate from the zoning plan, such as provisional zoning, the power to make amendments and the obligation to draw up a detailed zoning plan. If the obligation to draw up a detailed zoning plan is included in a zoning plan, an outline zoning plan is then first recorded, and is later worked out in detail by the mayor and aldermen. The rules which must be taken into consideration during the detailing are included in the zoning plan. The zoning plan must in all events offer sufficient insight into the building and possibilities for use to be permitted. In many cases a building ban is included in the plan as long as this has not yet been detailed. The Environmental Permitting (General Provisions) Act includes an 'integrated environmental permit whereby the applicable zoning plan can be derogated from'. If an application is submitted which is in conflict with the zoning plan, this will automatically be a request to derogate from the zoning plan. If an exemption derogates from the applicable zoning plan, this will be included in an integrated environmental permit. This permit can only be granted if the activity is not in conflict with proper spatial planning and the reasons for this decision contain substantiation. If the derogation from the zoning plan is less far-reaching, it is possible that the exemption is sufficient for 'minor cases'. It then concerns, among other things, the extension of a dwelling or the construction of outbuildings. The use of a property can also be changed with the minor cases exemptions, subject to conditions. The law and zoning plans can in some cases be used in a flexible manner, called flexibility possibilities. If you wish to make use of this, it is advisable to engage a lawyer to draw up a proper spatial substantiation, as the law, undertakings from the municipality and the specific business situation must hereby be taken into consideration. You can contact the lawyers of the Property department of AK Advocaten for a specific solution to your problem. Our office has a wealth of experience in the field of spatial planning with zoning plans, as well as the flexibility instruments such as exemptions. We can provide you with thorough and realistic advice, we can negotiate with the municipality on your behalf, or assist you if it comes to legal proceedings. Please contact us. Property Law