Report International Expert Meeting and International Conference on the new Dutch Spatial Planning Act 2007

The Dutch Institute for Construction Law (IBR) in cooperation with the Dutch Ministry of Housing, Spatial Planning and the Environment (VROM) have hosted an international expert meeting and conference on 8 and 9 February 2007 in The Hague on legal aspects of planning. This report gives a brief insight of the two days.

The two days were organized to exchange knowledge and share experiences with regard to different topics concerning the new Spatial Planning Act. The expert meeting and conference can be characterized as the international component of the “Introduction guidance new Spatial Planning Act”-project, which has been set up by VROM. On 8 February 2007, an expert-meeting took place with a group of international experts, and on 9 February 2007 this was continued in a broader setting.
International Expert meeting, 8 February 2007
On 8 February 2007, the first day of the international expert meeting and conference on planning law took place in the Parkhotel The Hague. Members of the Institute for Construction Law and the Ministry for Housing, Spatial Planning and the Environment prepared the meeting in the beautiful Park Room.

Introduction: Peter Torbijn; Ministry of Housing, Spatial Planning and the Environment
On behalf of the Minister of Housing, Spatial Planning and the Environment, mr. Torbijn welcomes the participants.

Cause for the meeting is the new Spatial Planning Act in the Netherlands, which is expected to enter into force on 1 January 2008. Characteristics of the new Act are:

a more pro-active stand of national and provincial governments with regard to their interests;
shortening procedures, while maintaining standards in legal protection
each government level is responsible for its own interests.

During this first day, four different aspects of planning law will be discussed:

order in council and provincial order, or a similar form of regulation in a foreign country;
integration of sectoral and planning law;
management regulation;
Land Development Act.

Professor Dick Lubach: Regulation of Spatial development by order in council (O.i.c.) and provincial order (P.o.)
The O.i.c. and P.o. are new instruments in Dutch spatial planning. In the existing spatial planning system only certain specially designated parts of the national Spatial key decisions and provincial spatial plans are directly binding for citizens. These plans are a mix of policy documents and legally binding provisions. With the new Spatial Planning Act, this confusing system is going to be changed. The new Act provides for a split of policy documents (structure visions) on the one hand, and legally binding instruments, such as O.i.c. and P.o. on the other hand. The O.i.c. and P.o. regard the content of local land use plans. The municipal council has to adopt a land use plan in accordance with the O.i.c. or P.o.. The issue in this respect is the proper division of regulatory authority between the different levels of government. To which extent is decentralization maintainable as a leading principle in spatial planning?

In the Netherlands, we have little recent experience with these binding supra local instruments. We are very interested in your experiences and opinions on this issue.
Two questions are discussed:
– To what extent is a split between policy documents and regulation possible;
– What is the proper view on the division of power in spatial planning.
Several countries give their opinion.

Professor Gerd Schmidt-Eichstadt: Integration of sectoral and spatial planning law
Professor Schmidt-Eichstadt gave a clear introduction to the German planning system. Several of the remarks he made: The federal government has to make so called reports. With regard to integration, sectoral planning has to follow spatial planning. If this doesn’t happen, the sectoral plan can be brought to court. You have to pay close attention to the aims (‘Ziele’) of the law.

Sectoral planning is stronger than spatial planning. And sectoral planning contains the final planning act. The courts play an important role as well – as they have the last decision in case of conflict. The courts give so called directions. It is good to note that only the cases that go wrong end up at the courts, still the majority of cases have no problem.
Professor Schmidt-Eichstadt also mentioned environmental aspects as a third element for integration. The environmental impact assessment (e.i.a.) is integrated into planning law.

Professor Dan Tarlock: Policy instruments for integration between spatial and environmental planning
The American planning system doesn’t have a ‘vision’-document. There is also a resistance against planning by the central government. Furthermore, the USA has its own unique characteristics, with a huge territory and an unevenly distributed population.
There is no direct federal land use planning. The control rests with the individual states. But an interesting fact is that federal government does own large pieces of land. There are also no constitutional restraints on planning. But for example, the draining of wetlands, needs a federal permit. Also, certain federal funds are connected with planning, and as such the federal government has a veto.

The relation between sectoral planning and the planning decision leads to an integrated decision. There is a second moment of integration, namely after the plan.
Professor Tarlock argues that the EU works around spatial planning (with the environmental impact assessment) because it doesn’t really have a spatial policy.

Mr. Christopher Anderton: The management regulation
Christopher Anderton of VROM gives a short introduction to the instrument of the management regulation, which is a new instrument in the new Dutch Spatial Planning Act. It can be used instead of a land use plan for areas in which there are no spatial developments foreseen. The Netherlands is curious whether other countries have similar instruments.

Basically, no other countries have any experiences with such an instrument. Germany has so-called Kleinensatzungen, which are used for built-up areas and can be characterized as some sort of bylaw for the outskirts of an area. Or the so-called 4B-plan, which can be used if you want to prevent certain things.

Denmark thinks in the line of granting an exemption from a local land use plan. The USA has committees to guard the status-quo. And in the UK, each development is assessed on its own merits.

Professor Vincent Renard: Economic aspects of planning law
Professor Renard gave an interesting presentation on ‘economics and planning’. What is the influence of planning on local finance? You have to pay attention to the cost of implementing a plan as well.

Certain recent developments, such as gated communities and urban sprawl can be witnessed. Land is getting more and more scarce, and this is leading to rising prices. But land deregulation does not lead to lower prices! There is also no compensation for restrictions on development – this is considered to be too rigid. You can argue that there is a “right to compensation” (for example NYC).

There is a discussion about the socialization of development rights. And with a system of taxation, the tax system wins from spatial planning. Solution could be the transfer of development rights.

Professor Rachelle Alterman: Development control, developer agreements and planning obligations
Professor Alterman discussed the economics of land use. Agreements are being made in practice with regard to profit of land development.
You can witness a certain systematic of how certain topics develop: first in practice, than in the courts and finally in legislation. Professor Alterman systematically discussed the following questions:

Why agreements? There are various rationales to conclude development agreements: physical need (building permission), impact (negative/positive) to recoup part of the development
What kind of agreements? Betterment tax – roads/small parks, schools/libraries, housing/offices (USA)
Where (for which area) are they concluded? On site, close neighborhood, broad area. Courts often have a problem with linkage (nexus).

Discussion on the establishment of a Platform of experts in planning law
Prior to the meeting, a draft statute has been made for the platform of planning experts. Goal of this platform is to engage in a regular exchange of knowledge on planning law, by arranging meetings (about once every year) and the use of an internet site. This requires some work from the members in sending in relevant publications, but can be of great benefit for extending and expanding knowledge on planning law.

After discussing the draft statute all persons present indicated their willingness to make this platform a success. Representatives of the Institute for Construction Law, the Dutch Ministry of Housing, Spatial Planning and the Environment, Rachelle Alterman and Dick Lubach then proceeded to sign the draft statute.
International conference, 9 February 2007

Opening and introduction: Prof. Dick Lubach (chairman for the day)
The chairman gives a short review of the expert-meeting held on 8 February. From this expert-meeting, the chairman concludes that the Netherlands are certainly not trailing in the field of spatial planning. The Netherlands has a lot of self-criticism, but taking into account the small territory, it handles spatial planning well. This international component of the “Introduction guidance”-project is also typically Dutch: to ask others what they think of it.

Ten years ago, an international conference took place as well. Conclusion back then was that spatial planning has to be considered has something purely national. From yesterday’s meeting, it can, on the contrary, be concluded that spatial planning is an international affair.

Word of welcome: Peter Torbijn; Ministry of Housing, Spatial Planning and the Environment
Mr. Torbijn welcomes everyone at the second day of the international conference on the new Dutch Spatial Planning Act. The conference is being held to exchange knowledge and share experiences with regard to different topics concerning the new Spatial Planning Act. Yesterday’s leitmotiv was the recognition of the problem we are facing, and the solutions being chosen by the various countries to tackle these problems. Similarities were to be found on almost all aspects.

The basic principles of the new Spatial Planning Act are:

more clarity before-hand;
shorter procedures.

The new Act is geared towards the future and new possibilities. An important guiding principle is: “Locally when possible, centrally when necessary”.

At the end of the day, the start of a new international forum for a more permanent exchange of knowledge in the areas of spatial planning/planning law will be discussed as well.

Introduction Order in Council (O.i.C.) and provincial order (p.o.) and integration of sectoral and planning law: prof. Peter van Buuren
Mr. Van Buuren starts off with a short introduction of the land use plan. In Dutch spatial planning law, the land use plan is the most important instrument. Until now, land use plans are adopted by municipalities. The province has a supervisory role, and has to approve every land use plan. By withholding approval from the whole or part of the land use plan, the province has a steering influence.

The legislator has decided to abandon the approval of land use plans by provinces with the introduction of the new Spatial Planning Act. Other instruments will replace this approval. One of these instruments is the power to give rules on land use plans by provincial order (article 4.1). The province can prescribe municipalities in a general way which contents their land use plan must have. These rules are initially directed towards the municipal councils. The municipal councils have to adapt their land use plans within one year, or another timeframe set in the order, to the rules contained in the p.o.. This system is comparable with the European guidelines, which can strongly influence, or even prescribe, the contents of national legislation.

To prevent unwanted developments taking place during the period municipalities need to adapt their land use plans, the p.o. can give rules which are meant to be temporary and can prevent these unwanted developments from happening.

Furthermore, the provision of article 44, first paragraph, of the Housing Act (after amendment of the law), which says that a building permit has to be refused when it is contrary to the rules of the p.o., is of big importance. Interesting questions arise here.

Mr. Van Buuren gives a few examples as illustration. As a result of these examples the following questions came up:

Must a building permit be refused because there is a conflict between the land use plan and the rules of the p.o.? Mr. Van Buuren considers this to be a tenable point of view.
What if someone puts forward a request for a building permit after the period for adaptation of the land use plan elapses, and this request is compatible with the p.o., but in conflict with the, yet to be adapted, land use plan. Will that person get the building permit? The municipal authorities can’t put up that the land use plan cannot be applied. It is imaginable that when the municipal council reviews a land use plan, another area will be earmarked in the vicinity of the building block, instead of that area.
What if the land use plan has been adapted, and this adaptation has entered into force, but the adaptation is not completely in accordance with the p.o.? A solution could be not to apply provisions from the adapted land use plan which are beneficial to the applicant. But is this legally-technically speaking a solution? The Dutch legal system does not have a technique of order-conformal interpretation, as the European Court of Justice has developed.

Mr. Van Buuren concludes:

The power to set general rules by p.o. is an interesting and valuable instrument. This also holds for the general rules of the national government, by O.i.C..
The legislator has failed to clarify which effect these rules have with regard to citizens.
1. The rules act as a ground for refusal for building permits, which according to the land use plan should be granted. It is uncertain whether this is intended. Supposed this is intended, these rules detract from the legal certainty of the land use plan. Against conclusion 2a can be said that the legislator in the Introduction Act will adapt article 6.1, paragraph 2, f, on damages resulting from an provision of the p.o, to narrow it down to the third paragraph of article 4.1.
2. Rules can’t act as a basis for granting the building permit, even though the land use plan is in conflict with these rules.
3. Unclear is who can ask for exemptions.
There is no possibility to interpret the provisions of a land use plan ‘order-conformal’.
Provincial rules can be of great importance to parties concerned. It is regrettable that no appeal is possible against these rules with the administrative judge.

Introduction management regulation and Land Development Act: Prof. Jan Struiksma
Mr. Struiksma starts by outlining the main principles of the management regulation:

instead of a land use plan;
for an area in which no spatial development is foreseen;
the management of the area is according to existing use;
possibility for construction and demolition permit;
possibility of granting exemptions;
checking building applications in article 44 of the Housing Act.

The council is only allowed to adopt a management regulation when no spatial development is foreseeable at that time (article 3.38, paragraph 1). Mr. Struiksma remarks it is not intended for municipalities to adopt a management regulation to avoid a land use plan procedure. This would harm legal protection.

Access to an administrative judge is possible when reviewing an application for a permit or an exemption or the application of an administrative sanction.

The administrative judge will assess the binding force of the regulation by considering whether developments were foreseeable. The regulation cannot serve the purpose to circumvent the land use plan and its procedural guarantees.

Mr. Struiksma notes that the administrative judge will quickly conclude that developments were foreseeable.

Access to the civil judge is only possible on the basis of a wrongful act. That is to say: by saying that the regulation lacks binding force and has resulted in damages.

Mr. Struiksma gives some further insight to the phrase ‘existing use’. Two interpretations are possible:

actually present use (at the time of adopting the plan), this also means illegal use!
legally allowed use (continuation of the allocation), but why then a management regulation and not an update of the land use plan?

Mr. Stuiksma continues by making a few remarks on the phrase ‘current building’. Presumption is that this can also be arranged in the management regulation.

Here two options are possible as well. On the one hand, actually present, here the same problem arises as with ‘existing use’. This also means illegal use. Furthermore, arbitrary and rigid building prescriptions could play a role.

Another interpretation is ‘legally allowed’: developments are then possible which are in conflict with the provisions of the Spatial Planning Act (for example: un-used building titles).

Mr. Struiksma finds it odd to say the least that the management regulation has been absorbed into the Act at the very last moment. This creates uncertainty and as a consequence problems. The Spatial Planning Decree could maybe give further clarification. Mr. Struiksma concludes it would be best to eliminate this instrument or at least never to use it.

Mr. Struiksma continues with the next topic of his presentation, the regulation for land development.

Is there freedom of contract? This is a grey area, existing jurisprudence is however clear.

Two situations can be distinguished:

Municipal initiative: the municipality aims for realization and spatial development through cooperation;
Developers initiative; the developer has lots, but no allocation and because of this is dependent on planning cooperation. For this operation, the conclusion of an exploitation agreement is necessary.

Of course, conflicts can rise about the fulfillment of the exploitation agreement. Mr. Struiksma refers to the court decision Beuningen/Blankenburg (High Court 06.01.2006). The agreement has to be based on the exploitation order as mentioned in article 42 of the current Spatial Planning Act. If this is not the case, it is in conflict with public order and invalid.

Later, there is not going to be an obligation to adopt an exploitation order, and furthermore freedom of contract is stressed. The government pictured municipal initiative here, and not the developers initiative. Existing jurisprudence can not be used anymore, the Supreme Court will be sidelined. Does this mean that a municipality can demand anything in the case of a developers initiative? That would lead to one-sided government behavior, also with administrative cost-recovery.

Are there solutions? The applicability of cost recover principles (profit, accountability and proportionality) via article 3:14 of the Civil Code. But the result of this application is uncertain.

Mr Struiksma concludes that adaptation of the legislative proposal is necessary; the general applicability of principles of cost-recovery and the list of sorts of costs and a general obligation to draw up an exploitation-scheme.

Workshops
During this day, four workshops took place. These were evaluated at the end of the day. The topics discussed during these workshops were:

Integration of sectoral and planning law;
Order in council and provincial order, or a similar form of regulation in a foreign country;
Management regulation;
Land Development Act.

Presentation of a new International Platform for the exchange of knowledge on planning law: Dr. Monika Chao-Duivis

Dr. Chao-Duivis gives a short introduction on the ‘Agreement on the establishment of a platform of experts in planning law’ which has been signed yesterday.

This international platform makes it possible to conduct comparative research in the field of planning law in various countries. Once a year, a conference will be held, each year in a different country.

Furthermore, a website will be launched and maintained by IBR, with information on planning law from as many countries as possible. All participants are warmly invited to contribute towards the contents of this website, for example by sending in relevant publications.

Evaluation of the conference: Prof. Rachelle Alterman
Prof. Alterman indicates that during the last two days a shared interest in the field of planning law has clearly showed.

Before this two-day conference, another symposium took place in Amsterdam. This symposium mainly concerned planning law & property rights.

Besides the international platform that has been set up during these two days, in Amsterdam another network was founded, which has more of an academic character. So there are two groups, with various activities:

website
meetings on various topics
cases

There is a certain overlap between these two groups, but they have a different character and composition.

From the last three days it can be concluded that planning law has a big impact on societies. As such it is not really relevant which legal system applies. Legal and practical questions are basically the same. It is exactly this conclusion which warrants the establishing of this Platform of experts in planning law.

Closing of the conference: Prof. Dick Lubach
The key theme of this conference was: The recognition of the problems the different countries are facing and the solutions they choose to tackle these problems.
A lot of experiences have been exchanged and contacts have been established. Hopefully the International Platform with its website and annual meetings will succeed in its aim to give this exchange a more permanent character.

Prof. Lubach thanks everyone for their attendance and closes the conference.

Photos Conference 2007

Arjan Bregman, Rachelle Altermann, Monika Chao, Henriëtte de Savorin Lohman and Dick Lubach sigining the agreement.