5 May 2023

Deviation from zoning in a Dutch zoning plan, how does it work?

Category: Administrative law, Zoning

Deviation from the zoning plan is possible to enable a building plan or change the function of a building in the Netherlands. Rezoning to give a building a new function is also an option. For example, from outbuilding to home, or from commercial space to lodging rental, or the destination office to residential.

4 methods to deviate from current zoning

There are four ways to deviate, namely:

  1. a deviation regulated in the zoning plan itself (inner plan deviation);
  2. a minor case; that is regulated in the minor case list, (Appendix II, Article 4, paragraph 11, Bor)
  3. An exemption based on good spatial substantiation (non-plan deviation);
  4. a temporary exemption based on the Environmental Law (General Provisions) Act (WABO).

How do you apply for a deviation from a Dutch zoning plan?

The application for the deviation goes through the omgevingloket.nl also called OLO.  From January 1, 2024 will be the Omgevingsloket. With this, an environmental permit is requested to deviate from the current zoning There can only be requested modification of a zoning but more can also be requested, such as a modification of the building. Each application must be provided with all relevant data such as cadastral data, drawing of the existing situation and new situation, etc. The Municipal College must assess each building plan on its own merits. It is also possible to indicate on that application that you would like preliminary consultations. In that case, on the basis of a sketch plan, it can be assessed whether your building plan has any chance of obtaining a zoning amendment.

Deviation from the zoning by amendment authority in the zoning plan

It is therefore important to first check the zoning plan itself to see if it includes an amendment authority or some other form of variance within the plan. A zoning plan may include the possibility to deviate from the rules of the zoning plan via an environmental permit (art. 3.6 subsection 1 under c Wro).All zoning plans nowadays must be available digitally. Most zoning plans can be found at ruimtelijkeplannen.nl. If an within-plan deviation option is included in the zoning plan, an application for deviation from the zoning plan must be prepared. This means that at least drawings of the existing situation and the intended situation must be made. An application can be submitted online.

Pre-consultation with municipality about zoning variance

Before submitting an application for deviation from the zoning plan, it may make sense to conduct preliminary consultations. Prior to the application for an environmental permit, the applicant can first consult with the municipality that must assess the application. This is called pre-consultation. This also saves on permit costs (fees) that are (much) higher for a complete environmental permit application. If you choose the pre-consultation option in the Environment Desk, the municipality can view the application/notification. During the preliminary consultation, you can test the feasibility of your plans together. Costs may be charged for the preliminary consultation (fees). If preliminary consultation through Omgevingsloket online is not possible, it is best to contact the person who is authorized to do the preliminary consultation.

Minor case as ground for zoning deviation

Article 4 of Annex II of the Bor contains the breadth cases. The crumb case regulation is intended to allow deviation from the zoning plan in a case in the crumb list. This list designates categories of cases for which, with application of Section 2.12(1)(a) under 2° of the Wabo, an environmental permit may be granted in deviation from the zoning plan, without imposing further restrictions on the circumstances in which this regulation may be applied (see also judgment of the Council of State of October 26, 2011, ECLI:NL:RVS:2011:BU1640).

Thus, if it concerns a deviation from the zoning plan that is less drastic, the crumbly case regulation could be applied. This could also be allowed under conditions. For example, there is a crumb case in the following situations:

  • the placing of outbuildings;
  • a dormer on the front side;
  • a roof construction;
  • a roof terrace, and the like.

Zoning amendment with good spatial substantiation

When departing from the zoning plan out of plan, an environmental permit may be granted if it is demonstrated with a spatial substantiation that there is a “good spatial planning”. Sometimes the existing function of a building, for example office, is no longer realizable, but use as living may be a good option. Such a deviation from the zoning plan requires a good spatial substantiation. Due to the deviation from the zoning plan and the change of use, there may be more parking pressure, for example, but there may also be noise pollution, less privacy, damage to natural values, shadow effects, reduction in neighbors’ residential enjoyment, etc. . Such issues should be discussed and explained in advance in the spatial substantiation. In the spatial substantiation, all urban preconditions must be well motivated and why the intended new situation is considered acceptable from a planning perspective.

Temporary deviation from zoning plan

A temporary deviation from the zoning plan can sometimes also offer a solution. Section 4(11) of Annex II of the Environmental Law Decree (Bor) provides that an environmental permit can be granted for the temporary deviation from a zoning plan, for a maximum period of ten years. For example, a temporary permit for solar panels was granted for 10 years (see solar field ruling). The Bor only requires that it must be factually possible and plausible that the licensed activity can be terminated without irreversible consequences. It also happens, for example, in the case of temporary housing for migrant or seasonal workers. In that case, for example, a building can be temporarily assigned the use function “lodging. Or a temporary retail establishment due to a major construction project. Again, such a temporary deviation must be well substantiated with a plan, accompanying drawings and an explanation showing that all legal requirements are met, including fire safety.

Blenheim’s Environmental Law team will be happy to advise you.