It is commonplace for a proposed project to be contrary to the applicable zoning plan or applicable management by-laws. In these cases, there are three options to depart from this zoning plan or these by-laws with an integrated environmental permit. One of these options is the so-called minor exemptions scheme [kruimelgevallenregeling] in Section 4 and 5, annex II of the Environmental Permitting Decree (“Bor”).

The minor exemptions list was substantially expanded in 2014. Planning-wise, it is currently possible to realise projects of a substantial size by relying on this list. The question here is whether different elements of this list may be combined. In a judgment dated 22 March 2017 (ECLI:NL:RVS:2017:744), the Administrative Law Division of the Council of State (“the Division”) confirmed that this is permitted.

Considerations of the Division

In this case, the municipal executive of Breda (“the executive”) had issued an integrated environmental permit in deviation from the zoning plan for:

  • the expansion of the extension on the ground floor of a building; and
  • stacked occupation of that same building.

Authority Contrary to the view of the appellant (a local resident), the Division ruled that the executive was authorised to deviate from the zoning plan:

  • for the expansion of the ground floor on the basis of Section 4 paragraph 1, annex II of Bor; and
  • for the change of use for stacked occupation on the basis of Section 4 paragraph 9, annex II of Bor.

In this context, the Division referred to the Explanatory Memorandum to the Decree to amend the Bor from 1 November 2014 (Bulletin of Acts and Decrees 2014, 333 p. 50-51) where it is stated that the different elements of Section 4, annex II, can be combined in one integrated environmental permit.

Number of homes The appellant also stated that the executive was not authorised to grant the integrated environmental permit as the requirement that the number of dwellings must remain the same, had not been satisfied (Section 5 paragraph 1, annex II, Bor). However, according to this paragraph, under c, this requirement does not hold when Section 4 paragraph 9, annex II is applied. The appellant argued conversely that in this case this requirement did apply as the integrated environmental permit for a deviation from the zoning plan was granted on the joint basis of Section 4, paragraph 1 and 9 of annex II.

The Division did not agree with this argument. For the use of the premises as stacked dwelling, the executive only deviated from the zoning plan on the basis of Section 4 paragraph 9 annex II, Bor. This means that the requirement that the number of dwellings remains the same did not apply in this case.

If you would like more information on the use of minor exemptions in planning matters, please contact Jelmer Keur, Government & Property lawyer.

By Jelmer Keur