The Netherlands – Response to Case 2007
The situation in The Netherlands
In general is has to be mentioned that the legislation regarding spatial planning is in a stage of transition. The Spatial Planning Act (Wet op de ruimtelijke ordening (WRO)) is subject to a major revision. At this moment (January 2007) the proposal has been accepted by the Tweede Kamer (the House of Representatives) and has to be discussed still in the Eerste Kamer (the Senate). The revised Act (Wro) (note the difference in the abbreviation)) will presumably enter into force by 1-1-2008. Furthermore an important proposal for a new legal instrument that is planned simultaneously with the new Wro is the Land Development Act (LDA). This Act gives new instruments in cases mentioned in question C.
A.
The case deals mainly with spatial planning and zoning questions. It implies planning and realisation of infrastructure and residential and industrial areas. As well as questions of management and financing.
In The Netherlands the planning of land use is mainly regulated by the Wet op de Ruimtelijke Ordening (WRO). This act dates back from 1962 but has been changed frequently since. The WRO is linked to the Woningwet (Housing Act) in which the building permit finds its place. The building permit is of extreme importance for the enforcement of especially the municipal zoning plans (bestemmingsplannen) since as a project is not in accordance with the zoning plan a building permit has to be refused. In this respect the WRO and the Woningwet are ‘Siamese twins’. Thus, the spatial planning system is rooted in a national act by the ‘formal’ legislator (i.e. Parliament and Crown).
In special cases, notably for the planning of major infrastructural projects the procedures are laid down in special legislation. The Tracéwet is an example of legislation that influences considerably physical planning decisions and is also linked to the WRO, but is not integrated in the WRO. The WRO is mainly an act that regulates planning of the location of the physical development and to a lesser extent the conservation of areas. The latter is going to be changed in the Wro where plans aimed at conservation are introduced (beheersplannen). Financing of the costs of public amenities is partly guaranteed on a contractual basis, partly by municipal taxes. In this respect the LDA will give an important extra tool to deal with ‘free riders’ who refuse to conclude contracts (ff under c).
Originally the system of the WRO is developed as an instrument of ‘permissive planning’ (toelatingsplanologie). I.e. all forms of land use are permitted as long as it is not made impossible by planning regulation, especially bestemmingsplannen. In some other countries the situation is just the reverse: no development is permitted unless there is a specific regulation that makes it possible.
B.
Originally the WRO implied a very decentralised planning system. Only the municipal ‘bestemmingsplannen’ were legally binding. However, from the start in 1962 the supra local authorities (province and State) had the power to intervene in the municipal planning in cases where is was thought necessary. This power, however, was hardly exercised being contradictory to the well-known Dutch ‘Poldermodel’.
Furthermore ‘bestemmingsplannen’ had to be approved by the provincial authorities. Along the way tendencies of centralisation have become immanent in the existing planning system in the sense that parts of the supranational plans have come to be regarded as legally binding. This under the influence of the general codification of the Dutch administrative law in the General Administrative Law Act (GALA).
In the new Wro the idea of decentralisation as a predominant principle of planning law has been abandoned. In the new legislation the State, provinces and the municipalities all have authority to enact zoning plans that are directly binding for the citizen. The leading idea being now that the authority who is politically responsible for a spatial development on a certain policy level, has to have the power to give the binding rules to regulate this development.
C.
Under the existing WRO the contribution in the cost of public amenities is regulated by a municipal by-law (exploitatieverordening) in which provisions are made to apportion the costs to the lots that are to be developed. This system works well in situations where all the partners are willing to conclude a contract (exploitatieovereenkomst) on the basis of the exploitatieverordening. The problem of the so called ‘freeriders’ can not be solved by this practice. In the situation that those who do profit from the public amenities refuse to contribute in the costs, i.e. refuse to conclude a contract in the existing legislation the only way to recover costs is to impose a form of municipal tax (baatbelasting).
If the LDA enters into force this situation will be changed, although the system still presumes the priority of recovering costs by contract the municipal board will get the power to enact a development plan in which the method of assigning the costs to be recovered is regulated (art. 6.13, sub 6). Furthermore art. 6.17 states that ‘the Mayor and Alderman shall recover the costs associated with the development of the land in a development area by attaching to a building permit … with due regard to the development plan the conditions that the license holder shall pay the municipality a development contribution, unless the contribution is insured elsewhere. In this way the position of the municipality is reinforced considerably.
In an implementing order (AMvB) the categories of costs to be recovered are laid down. Here it is specifically stated that costs for infrastructure exceeding the exploitation area (a.o. roads that connect the area to be developed with supra local infrastructure) can be recovered.
D.
During discussion in Parliament an addition to the new Wro has been accepted in which the municipality in areas with a ‘low spatial dynamism’ instead of a ‘bestemmingsplan’ can adopt a management regulation. This new instrument can provide for regulation in already developed areas where no (major) spatial developments are foreseen in the near future.
Dick Lubach