In a ruling of 17 May 2017 (ECLI:NL:RVS:2017:1309) a zoning plan which included an XL supermarket failed. No investigation had been carried out into other, realistic spatial planning options for a supermarket. The conclusion of the report, that there is a qualitative need and that on this basis it is established that no unacceptable vacancy would arise, was rejected by the Division.
Realistic spatial planning options
In respect of the reliance of a pension fund and the retailers on section 3.1.6 second paragraph of the Physical Planning Decree (Bro), the Division considered that with the intended development, the total area intended for retail outlets is expanded without a reduction of the existing permitted retail outlet uses. In the investigation into the current regional need for a new urban development, the existing regional offer must be analysed. The report and supplementary memo drafted to this end only included the current supermarket initiatives in the assessment of the distributive space. No investigation had been carried out into other, realistic spatial planning options for a supermarket.
In respect of the submission of the appellants that there is no restriction at all for the development of supermarkets in the existing zoning plan for the centre, it was considered that this did not mean that all the space where, in theory, a supermarket could be established should have been included in the research. It should however have been investigated to what extent there are realistic possibilities for the establishment or expansion of supermarkets. During the hearing, the expansion possibilities of an existing supermarket and the possibilities for expanding the new supermarket in a different shopping centre, were referred to.
In addition, the needs report stated that it is not plausible that a different supermarket (for which there is also still space for expansion), which will probably be vacated if the XL-supermarket is taken into use, will again be used for a normal supermarket. According to the Division, there was no guarantee at all for this, as there is no intention to limit the existing spatial planning possibilities for supermarkets.
Current regional need has not been sufficiently investigated
The Division was therefore of the view that the current regional need for the anticipated supermarket had not been properly investigated. The conclusion that there is a qualitative need and that on the basis of this qualitative need it is established that no unacceptable vacancy arises, was rejected. According to the Division, this conclusion was after all partly based on a calculation of the size of the oversupply, which calculation, in view of the considerations set out above, is not without is problems. The Division did however state that it was not excluded per se that the qualitative aspects connected with a large supermarket with ample parking facilities could lead to the conclusion that, despite a particular oversupply in the supermarket segment, an unacceptable vacancy would not arise from a spatial planning point of view.
The “new” Ladder
The amended Ladder comes into force on 1 July 2017. In these “new” regulations, nothing changes in respect of the terms “existing urban area” and “new urban development”. The term “current regional need” is replaced by “need”. This implies that for the needs research (only) the catchment area of the development is important and not the region. The third thread, which currently prescribes a suitable opening up, is dropped. Finally, the needs investigation for amendments plans and detailed zoning plans are also deferred until such times these plans are adopted. Minister Schultz van Haegen (IenM), in connection with the subsequent scrutiny procedure, has today sent the decree of 21 April 2017 to amend the Physical Planning Decree back to the Lower House of parliament.