The Netherlands Response

Dutch answer to the French question relating to shopping centers

In the Netherlands, there is no special legislation regarding shopping centers. Shopping centers are subject to the same planning law regulations as any other function. Very important from the legal viewpoint is article 2.1, paragraph 1, of the Environmental Licensing (General Provisions) Act, which states:

It is forbidden to realise a project without a permit, insofar the project entirely or  partially consists of:
a. building a construction,
b. (…),
c. etc.

The Municipal Executive of the municipality where the project is to be realised is authorised to grant (and reject) permit applications for building work (art. 2.4, para. 1, Environmental Licensing [General Provisions] Act).

Stipulations governing the environmental permit are laid down in the Environmental Licensing (General Provisions) Act. Environmental permit requirements apply to all structures (including works of civil engineering).

The assessment framework for the environmental permit – the criteria by which the application is granted or denied – is extensive. In essence, the environmental permit regulates the testing of a design for a structure against criteria related to:

  • urban planning;
  • technical soundness and safety;
  • aesthetics;
  • (to a certain extent) health and environment.

The environmental permit (which relates to the realisation of a project which consists of building a construction) may only and indeed must be rejected if:

  • the structure is in conflict with the Building Decree (Dutch: Bouwbesluit);
  • the structure does not satisfy the municipal building ordinance (Dutch: bouwverordening);
  • the structure is in conflict with the municipal land-use plan (Dutch: bestemmingsplan) or management regulation (Dutch: beheersverordening);
  • the structure is, according to the Municipal Executive, in conflict with reasonable requirements of external appearance (Dutch: redelijke eisen van welstand);
  • the structure is in conflict with the advice of the Committee for Tunnel safety;
  • the structure is in conflict with a development plan (Dutch: exploitatieplan).
[article 2.10, paragraph 1, of the Environmental Licensing (General Provisions) Act]

Most important ground for refusal of an application in case of a new shopping center is the third one: municipalities (local authorities) can prevent new shopping centers from being built at the outskirts of the city by use of their land-use plan (bestemmingsplan). The land-use plan regulates which functions are allowed. This may include regulation of allowed floor surface.

I would like add something:
Municipalities (local authorities) often perform a market research in the preparation of a new land-use plan. (Or have this research performed by the applicant of a permit for a new shopping center.) This market research shows if there is a need for new shops in the area that is covered by the land-use plan. Thus: the research shows if there is enough ‘market space’ for the new shopping center. Should the research show that there is no market demand for new shops (that is: there are not enough customers for the shops) than the land-use plan will not include new shops. This market research is, in a way, a measure to protect the interests of the existing shopping center(s) in the neighbourhood. This market research is not obligatory by law, but nevertheless often used by municipalities.
However, recently questions have been raised whether this practice is in conflict with (1) art. 43 of the EC Treaty relating to freedom of establishment and (2) the EC Services Directive (if the case regards retailers from other member states that work internationally and want to open a shopping center in an other EC country).

Fred Hobma, LL.M., Ph.D.

Associate professor of Planning Law
Delft University of Technology
The Netherlands

1. This only applies to tunnels with a minimum length of 250 meters, which will be used by motorcars