Judgment 202204865/2/R3 – Council of State

202204865/2/R3.
Judgment date: March 1, 2023

DEPARTMENT
ADMINISTRATIVE LAW

Judgment of the urgent applications judge of the administrative litigation section of the Council of State on a request for interim measures (article 8:81 of the general law on administrative law) in the dispute between:

[verzoeker]residing in Benthuizen, municipality of Alphen aan den Rijn,

And

the municipal council of Alphen aan den Rijn,

respondent.

Process flow

By decision of June 16, 2022, the council adopted the zoning plan “Reassignment of floriculture outside the 2021 contour”.

against this decision [verzoeker] appeal filed.

[verzoeker] asked the Court to grant interim measures.

Counsel filed a statement of defence.

[partij] make a written statement.

The interim relief judge heard the application at a hearing on February 14, 2023, where [verzoeker], assisted by Me JA Huijgen, lawyer in The Hague, and counsel, represented by engineer R. Prins, appeared. Besides [partij]assisted by Me CJR van Binsbergen, lawyer in Bodegraven, heard as a party to the hearing.

Considerations

Introduction

1. The judgment of the judge in chambers is provisional in nature and is not binding in the proceedings on the merits.

2. The adopted zoning plan allows for 12 different developments, spread over the municipality of Alphen aan den Rijn, all located outside the tree and floriculture concentration area of ​​the Greenport Boskoop region. One of these developments is the construction of a house on a still undeveloped land between the plots [locatie 1] And [locatie 2] in Benthuizen. In the zoning plan, part of this land has been assigned to a residential destination where previously an agricultural destination applied. The council has authorized the construction of a house here in compensation for the remediation of the location Noordpolder (next to it) 11, which is located in the concentration area of ​​floriculture.

[verzoeker] lives on [locatie 2]. He disagrees that a house was made possible right next to his land and has appealed against the zoning plan. He asked the judge in chambers to suspend the zoning plan until his appeal is ruled on.

Speed

3. The zoning plan has already entered into force. On this basis, the municipal executive granted an environmental permit for the house to [partij]. [verzoeker] opposed it. The Commission has not yet ruled on this objection. It means that [verzoeker] has an urgent interest in the requested suspension of the zoning plan.

Principle of trust

4. [verzoeker] argues on appeal that the council breached the principle of confidentiality by making the house possible. He argues that on the side of the municipality earlier [partij] was informed that a neighborhood agreement was required, i.e. a statement from the residents indicating that they could accept the new accommodation. [verzoeker] always indicated that he could not agree with the new house.

4.1. Anyone invoking the principle of confidentiality must make it plausible that undertakings or other representations have been made or actions have been performed on the part of the government from which he could and should reasonably infer in the given circumstances whether the administrative authority would exercise some power and, if so, how. It is also required that the undertaking, other statement or behavior can be attributed to the competent administrative authority. This is the case if the data subject could and should reasonably assume, in the given circumstances, that the person who made the statement or performed the conduct represented the opinion of the competent institution.

[verzoeker] relies on a letter dated October 21, 2019. This letter is addressed to [partij] and contains an official response to his request in principle to cooperate with the house. It indicates that there is an official intention to cooperate in a revision of the zoning plan under a number of conditions, including the condition that [partij] negotiate a neighborhood agreement. The judge in chambers is of the opinion that this letter does not contain any statement from which [verzoeker] could stem from the expectation that the council would refuse to cooperate with the house without its consent. The letter is not addressed to him and does not imply that a house next to his land will ever be made possible without his consent. Also, the letter only describes an official position in so many words and not the council’s position. It is therefore to be expected that this ground of appeal will not be allowed in the proceedings on the merits.

Room-by-room control application

5. [verzoeker] argues on appeal that the zoning plan does not comply with the principles of the “space-by-space scheme in the Greenport Regio Boskoop tree and floriculture concentration area” (hereinafter: the space-by-space scheme). One of the starting points is that quality gains should not only be achieved at the remediation location (here Noordpolder (next to) 11), but also at the compensation location (here the plot between [locatie 1] And [locatie 2], for which the zoning plan was established). The Board has not assessed whether any quality gains will be realized at the offset location, as it is outside the tree and floriculture concentration area itself. It only assessed whether quality gains were made overall. It depends [verzoeker] unjustified, because the space-by-space scheme indicates that it can also offer a handle for locations outside this area, so quality gains must also be achieved at the compensation location. This quality gain is illustrated here [verzoeker] not accomplished. According to him, this is not possible here with the authorization of a house. This location is located within the Provincial “Green Buffer” Protected Area. Here, the quality “non-urbanized area” must be maintained and if possible reinforced. There is also the “peat recovery” type landscape. It is an open landscape, characterized by numerous openings between the courtyards. The authorized accommodation complies with this [verzoeker] not with you. Finally, he argues that one of the conditions for the application of the chamber against chamber system is the complete cessation of activity. That is not the case here. The company that was active at the remediation site is still located and active at Noordpolder 17-19. The reorganization plan does not change anything either. No cessation of activity takes place either at the place of compensation, because there has never been any activity at this place. Therefore, Article 8(8.4.1) of the Plan Regulations, which requires the total termination of activities, cannot be complied with.

5.1. The judge in chambers is not convinced in advance that in the present case the requirement that quality gains must also be made instead of compensation on the basis of the space-by-space scheme applies. This program aims to improve the Greenport Boskoop area, while the offset location is outside of it. It is true that section 1.3 states that the assessment framework in this by-law may also provide guidance for venues outside of it, but that does not mean that the board is obligated to apply this assessment framework here. assessment. The Council explained that it found no reason to do so in this case, because the “vision document Business transformation out of floriculture outline, advice on spatial quality” (hereafter: the vision document) proposes its own assessment framework for the area in which the offset location is located. In the interim judge’s opinion, this is not unreasonable and the Council should apply the criteria of this vision document and therefore content itself with assessing whether, overall, quality gains have been achieved.

5.2. In its assessment of whether it considers the house to be spatially acceptable, the council acknowledged that the location is within the green buffer zone. In this context, the council carried out a reasoned assessment to determine whether the house fit in with the identity of the existing area, whether the house did not entail structural changes, whether the house corresponded to nature and at the scale of the area and whether it met the relevant guidelines of the quality map with the provincial environmental ordinance. The council also carried out a substantiated assessment against the applicable quality criteria that apply to the location based on the vision document: “maintain openness/width”, “recognizable structures in the landscape unit” , “recognizable edges of the landscape unit” and “ribbons remain ribbons”. The preliminary measures judge sees no reason to assume that the location in the green buffer zone and the criteria set out in the vision document preclude the addition of a house under any circumstances. The summary judge sees what [verzoeker] therefore offered no reason to suppose that the board’s assessment would not be valid in the context of the proceedings on the merits.

5.3. Insofar as it must be assumed that the municipality should have authorized the house only if there had been a complete cessation of activities on the remediation site, the judge in chambers is of the opinion that it is obvious that the decisive factor is whether there are no longer any commercial activities on the plot in question. [verzoeker] wrongly assumes, in the opinion of the judge in chambers, that the company which carried out activities on this land must have ceased in its entirety, also insofar as this company carried out activities on other land. According to the passages in the response memorandum, views on which [verzoeker] relies in this respect, it cannot be inferred that the Commission presumes that. Such an explanation is also not obvious, given the spatial objective pursued with a space-by-space scheme and where gains can also be obtained with plot-scale rehabilitation.

5.4. With regard to the argument relating to Article 8, paragraph 8.4.1, of the town planning regulations, the judge in chambers considers the following. This paragraph contains a contingent liability. In short, and as far as it is relevant here, it boils down to the fact that it is forbidden to use the land on the dike [locatie 1] And [locatie 2] (the offset location) to be used for a new settlement, without the existing agricultural operation on the site having been completely terminated and the existing environmental rights vested in the operation having been terminated. The judge in chambers specifies first and foremost that this is not a condition to be met for the council to be able to adopt the zoning plan. The question to be answered in the proceedings on the merits is whether the zoning plan is feasible given this conditional obligation.

Assuming that it should be presumed that this contingent liability relates to the clearing site, it follows from what has been considered above that this obligation is not intended, nor is it required, to guarantee quality gains. through the rehabilitation of the offset site itself. Consequently, in the opinion of the judge in chambers, it is irrelevant whether or not commercial activities took place at the place of compensation in the past. The contingent liability is important to ensure that the assigned residential function does not conflict with an existing agricultural activity at the offset site. However, in view of the documents and photos shown, the judge in chambers assumes that no commercial activity is currently taking place at the place of compensation and that no environmental rights apply. For this reason alone, the judge in chambers sees no reason to suppose that the zoning plan will not hold in the case in the main proceedings as regards the feasibility of the conditional obligation.

Conclusion

6. In view of the foregoing, the application must be dismissed.

7. The council does not have to reimburse legal costs.

Decision

The judge in chambers of the administrative litigation chamber of the Council of State:

rejects the request.

Thus established by Mr. BJ van Ettekoven, judge in chambers, in the presence of Mr. JN Witsen, clerk.

wg Van Ettekoven
President of the Court

wg witsen
clerk

Delivered in public on March 1, 2023

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