It is not always prohibited to exact a financial contribution in exchange for the city’s support in physical planning. The Spatial Planning Act (‘Wro’) allows for recovery of the costs of land development by an anterior agreement (Article 6.12 in conjunction with Article 6.24 Wro). In this way any costs exceeding the plan can also be allocated to developers. If no agreement can be reached about an anterior agreement, recovery may be secured by a land development plan (Article 6.12.1Wro). In practice local councils try to ‘force’ developers to enter into an anterior agreement. Several (recent) decisions of the Division show that this is not allowed.
The council of the Municipality of Cranendonck had authorised the reasoned planning exemption for the construction of five homes. The council had not considered the development in the zoning plan because no anterior agreement had been made with the owner of the plot. The Division recently1 ruled that the mere circumstance that no anterior agreement had been made in itself is insufficient not to assign a residential purpose to the plot as there were no planning objections to the homes, and the local council had to adopt a development plan unless the costs of development could be recovered otherwise.
In 20112 and in 20133 the Division, in similar situations, held that as there were no planning objections to the requested development the absence of an anterior agreement was inadequate reason not to assign a residential purpose to the plot.
It would seem that despite the rulings of the Division local councils still practice ‘paid physical planning’. This is not allowed! If there are no objections to development in terms of physical planning, local councils must decide on development. For the recovery of costs local councils must reach agreement about an anterior agreement and if they fail to do so, will have to adopt a development plan.
Fiona Sassen
sassen@slangen-advocaten.nl
10 March 2015
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1 Administrative Jurisdiction Division Council of State 22 October 2014, 201309214/1/R3.
2 Administrative Jurisdiction Division Council of State 3 August 2011, 201009334/1/R3.
3 Administrative Jurisdiction Division Council of State 25 October 2013, BR 2014/5.
