In its verdict on 9 September 2015 (no. 201400623/1/R1), the Department clarifies on a previous legal consideration regarding competitors invoking Article 3.1.6 paragraph 2 of the Spatial Planning Decree (“Bro”), also known as the ladder of sustainable urbanisation.

Ladder of sustainable urbanisation

Article 3.1.6 paragraph 2 of the Bro states that the description of a zoning plan which allows new urban development must meet the following conditions:

  1. it describes that the proposed urban development provides for a current regional need;
  2. if the description in point a. shows that there is a current regional need, the extent is described to which that need can be provided for within the existing urban area of the region, through the utilisation of available land by restructuring, transformation, or otherwise, and;
  3. if the description in point b. shows that the urban development cannot take place within the existing urban area of the region, the extent is described to which that need is provided for at locations which, using various forms of transportation, are appropriately made accessible or developed as such.

Competitors

If the new zoning plan allows for new urban development, the abovementioned stipulation is often invoked by competitors. The Department (see verdict of 20 May 2015, no. 201403699/1/R2) previously considered that these competitors could not invoke Article 3.1.6 paragraph 2 of the Bro, as they could not pass the relativity test prescribed by Article 8:69a of the General Administrative Law Act (“Awb”). The reason for this was that, according to the Department, a competitor who qualifies as an interested party can only successfully invoke Article 3.1.6 paragraph 2 of the Bro if he can present facts and circumstances justifying the view that the proposed development could lead to relevant vacancy.

In its verdict on 9 September 2015, the Department considers for the first time that the competitors can pass the relatively difficult relativity test.

Verdict of 9 September 2015

What actually happened? The council of the municipality of Venlo established a zoning plan that allowed a hardware store (Bauhaus) with accompanying garden centre and drive-in in a business park.

This was appealed by a number of other retailers located at the same business park (“the competitors”), invoking Article 3.1.6 paragraph 2 of the Bro, inter alia. According to the appellants, the description of the zoning plan did not meet the conditions dictated by Article 3.1.6 paragraph 2 of the Bro.

Unsurprisingly, the council took the position that the relativity principle entails that appellants cannot invoke the rule contained in Article 3.1.6 paragraph 2 of the Bro, as it does not cover the protection of interest of appellants, as competitors.

One of the appellants runs a Karwei outlet in the business park. There is a Praxis garden centre next door. The parties agree that the arrival of Bauhaus, with its garden market, could result in the closure of the Praxis garden centre. The Department deems this relevant to the business climate for the adjacent Karwei outlet. The Department concludes that the operator of the Karwei outlet can legitimately invoke Article 3.1.6 paragraph 2 of the Bro. The Karwei operator therefore passes the relativity test.

On the other hand, another Bauhaus competitor was less successful with the Department. The competitor operates a Gamma located 2.4 km from the plan area. Its isolated location means that the arrival of Bauhaus cannot cause any relevant vacancy near the Gamma which could affect its business climate. On these grounds, the Department considers that, according to Article 8:69a of the Awb, the Gamma operator cannot successfully invoke Article 3.1.6 paragraph 2 of the Bro.

Conclusion

To pass the relativity test as a competitor, thus enforcing a substantive evaluation regarding an appeal based on Article 3.1.6 paragraph 2 of the Bro, one must be able to prove relevant vacancy. Once this can be proven, the administrative court will evaluate the grounds of the appeal substantively. The administrative court will thereby evaluate whether the contested decision entails such vacancy effects that it would result in an unacceptable situation from the viewpoint of proper planning.