Building houses near an industrial estate is not straightforward. On the one hand, it must be guaranteed that the homes to be built offer a proper quality of life, but, on the other, this may not impede the nearby businesses in their operations. On 14 June 2017, the Administrative Jurisdiction Division of the Council of State gave a ruling (ECLI:NL:RVS:2017:1541) on a zoning plan of the Municipality of Arnhem that provides for the realisation of 200 homes. A number of businesses objected to this.
Unacceptable noise levels
One of the businesses fears a restriction in its business activities as a result of the permitted homes provided for in the plan on the other side of the road. According to the company, the noise levels for these homes have been insufficiently surveyed and there will be unacceptable noise levels on location. The company argued that the research into the acoustic aspects of its business was defective as the municipal executive had wrongly based itself on future customised regulations as referred to in the Activities (Environmental Management) Decree [Activiteitenbesluit milieubeheer] (hereafter: Activities Decree) for its company.
Future customised regulations
The environmental aspects survey carried out in the context of this plan states that, as regards the business operations of the company, the survey was not based on the current customised regulations as adopted by the Municipal Executive but on customised regulations that the authorised government intends to adopt in the future. The Division considered that the municipal executive could not, on the basis of the documents available at the time of the adoption of the plan, reasonably have come to the position that the customised regulations, which in its opinion must be drafted for the benefit of the plan, will not lead to a restriction of the representative, and also designated as such, business activities of the company. In the view of the Division, it had also been insufficiently substantiated that with the proposed customised regulations the Activities Decree could be complied with at the location of the anticipated homes.
The Division deemed it important in this respect that it was plausible that as a result of the proposed customised regulations relating to the loading and unloading at the front during the evening and night, the company will no longer be able to load and unload steel directly in and from the designated industrial building during this period, which currently is taking place. It is also plausible that this is important for its business activities. The municipal executive countered that, should it appear that the maximum noise levels cannot be adhered to, deviating limits could be included in the customised regulations to be determined. The Division did not agree with this, as it was unclear what the consequences of this would be for noise levels at the anticipated homes.
Intention to impose customised regulations is possible but not in this case. The Division has previously considered (ruling of 3 September 2014, ECLI:NL:RVS:2014:3269) that, in principle, customised regulations do not have to be determined before the adoption of a zoning plan if the municipal executive could already reasonably assume in advance that customised regulations will be upheld during appeal proceedings. In this case, where the customised regulations to be imposed could have drastic consequences for the company subject to the customised regulations, it would, however, not be logical to assume that the proposed customised regulations would be upheld without there being sufficient insight into the consequences of the proposed customised regulations for the relevant company and to move the relevant survey until after the adoption of the plan.
The Division therefore ruled that the plan element with designated use ‘Home’ had not been prepared with the required care and was not based on sound reasoning as required pursuant to section 3:46 of the General Administrative Law Act [Awb].
Noise policy plan
In the view of the Division, it follows from the explanation of the ceiling values in the Noise Policy Plan that the values included for each noise source, road and rail noise and industrial noise respectively, must be based on the cumulative noise level. The argument of the municipal executive that the Noise Policy Plan should not be based on cumulated values per type of noise source and that the Noise Policy Plan is only concerned with the determination of higher values for the maximum permitted noise levels and therefore with the noise level originating from an individual source, is not followed by the Division.
It is important here that the introduction of the Noise Policy Plan states that the Noise Abatement Act, the Environmental Management Act, the Spatial Planning Act (old), the Housing Act and the general municipal by-laws (APV) result in duties aiming to prevent noise pollution. According to the introduction, the performance of these duties often means that interests have to be weighed up and the memorandum offers the framework for this balancing of interests: what noise level do we find acceptable when and where. The Division stated that the municipal executive had failed in both the environmental aspects survey and in other submitted reports and documents to make it transparent that at all locations of the anticipated homes where a higher noise level than the ceiling value had been calculated, there could still be acceptable living conditions and an acceptable residential environment by making structural provisions.
Dynamic reference to Parking Policy
The Division has previously confirmed that a zoning plan may contain a reference to policy rules that include parking standards (see the ruling of 8 March 2017, ECLI:NL:RVS:2017:607). This principle is also confirmed in the ruling below. The Division considered that with the coming into force of the Home Affairs and Kingdom Relations Remedial Act 2014 on 29 November 2014, [Reparatiewet Binnenlandse Zaken en Koninkrijksrelaties] the urban planning provisions in the building regulations ceased to apply in the case of a zoning plan change. These provisions related, inter alia, to parking. According to the Division, the municipal executive acknowledged this and included article 19 in the plan regulations to this end. For the details of the parking standards, it is referred to the Arnhem policy rules for parking.
As regards the reference to the municipal policy memorandum ‘policy rules for application of article 2.5.30 of the Arnhem Municipal Building Regulations 2003’, the Division considered that this states that for the determination of the parking standard, use is made of the parking standards as included in annex 1 of the policy rules. Annex 1 includes the parking standards for different functions, including living. This policy rule also includes an annex with projects where agreements have been made on the parking standards to be applied. The project provided for in the current plan is included in this list. According to the Division this does not mean, however, that a parking standard no longer applies to such projects. Such a circumstance does, therefore, not mean that the reference to the policy is legally uncertain.
The Division did, however, considered that, contrary to that prescribed in article 3.1.2, second paragraph, under a of the Spatial Planning Decree (Bro), the plan rule does not state to which authority article 19 of the plan rules relate. In view of this, the article offers insufficient guarantee to be able to be applied as a standard of review during the application for an integrated environmental permit for building and it is not certain that in the context of proceedings on the integrated environmental permit any objections relating to the applied parking standard can be put forward. The dynamic reference therefore still failed. The municipal executive was ordered to rectify this failure and the parts referred to above.
If you would like to know more about zoning plans, noise and dynamic reference, please contact Jasper Molenaar.