14 March 2022

Municipalities banning flash delivery outlets, will that work?

Category: Retail space

Various Dutch municipalities have imposed a temporary ban of one year on the establishment of flash delivery companies such as Gorillas, Getir, Flink and Zapp. This has been done mainly because of the nuisance the bicycle delivery service would cause. I’ve pointed out before that this is far too severe a measure, and that there are other less far-reaching measures to counteract nuisance. According to Dutch newspaper NRC, which consulted nine municipalities, the nuisance would mainly consist of: noise nuisance, traffic problems or bicycles blocking the pavement (article 14/2). In this blog, I will discuss why municipalities make these drastic decisions, when there are less far-reaching alternatives.

New retail services and good spatial planning

The municipality is responsible for good spatial planning. The municipal council adopts zoning plans in which premises are designated as retail space. If an undesirable situation arises, the council can take a decision to change the zoning plan. The preparatory decision, which is valid for one year, can also include a prohibition of use for the existing zoning. This is a political decision by the municipal council that can be legally reviewed by the court if a permit is refused or in the case of a decision to enforce. Because flash deliverers fall under retail trade, the municipalities now want to amend zoning plans to exclude these companies from retail trade locations. Through the temporary preparatory decision, undesired use of retail areas can thus be restricted, and temporary undesired use can be prohibited. Since this decision can have far-reaching consequences for retail businesses and premises owners, the question arises whether such a decision is the right means, proportionate and necessary (requirements from the EU  Services Directive). The Spatial Planning Act only has this power to take a temporary measure to prohibit the use of a zoning. Since this is the most severe measure with major consequences for various businesses, the municipality must also look at less far-reaching measures to achieve the same goal. For the time being, this does not appear to be the case. The municipality of Amsterdam even kept the grounds for the preparatory decision secret, in contrast to Rotterdam. It is ultimately up to the court whether the substantiation of a decision is sufficient.

Temporary decision used before to oppose tourist shops

The municipality of Amsterdam took a similar decision to limit the number of tourist shops in the city centre. This led to various lawsuits against the zoning plan that followed. In addition to a ban on a number of uses, such as a tourist shop, office with counter function aimed at tourists, souvenir shop, mini-supermarket and “grow shop”, the plan provided for a ban on operating a mixed formula in a shop with a food product range. The preparatory decision survived, but 1 cheese shop was allowed to remain open because the Board was aware that the shop was in the process of using the premises as a tourist shop. Entrepreneurs who were disadvantaged by the preparatory decision could apply for damage compensation, whereby compensation can be paid for damage caused by lawful government action. The assessment of a claim takes place on the basis of the General Regulation on Damage Compensation Amsterdam. With regard to the preparatory decision, the court ruled that the objective pursued could not be achieved with the alternatives proposed by the aggrieved parties. Companies that are affected by a preparatory decision can point out other measures that are possible to achieve the objective. A power does not mean that you have to use it just like that. For example, this is not the case if the decision is not necessary and proportionate. And the purpose of the measure can also be achieved in other, less drastic ways. That’s the way the administrative courts will look at this issue.

Alternative to nuisance parking of delivery  bicycles

If a bicycle or scooters of delivery services hinders or obstructs the passage on the pavement, a traffic warden can enforce the law on the basis of art. 4.27 paragraph 1a of the Amsterdam General Municipal Bye-Laws (Apv). Other municipalities have similar ordinances with the same powers. Even if this is the bicycle of a speed camera driver. The prohibition on causing nuisance of Article 5.7 also applies to scooters. You do not have to change a zoning plan for this and therefore do not have to announce a shop prohibition in advance either. An enforcement officer (boa) can take enforcement action. If the traffic warden coordinates complaints with the store manager, undesirable parking behaviour can be quickly remedied.

Article 4.27 paragraph 3 of the Amsterdam General Municipal Bye-Laws states that it is possible to designate parking spaces for bicycles and scooters. So also for bicycles of bicycle delivery drivers. The Municipal Executive may determine this in the interests of safety and to prevent nuisance in certain places. The Municipal Executive may then designate areas on the street where bicycles or scooters may only be parked in a designated facility and/or designate areas where it is prohibited to park for longer than a period to be determined by the Municipal Executive. This power has been delegated to the executive committee of the municipality. It is not necessary to change the zoning, nor is a preparatory decision such as that currently in place. Such a decision is called a designation decision. According to the municipality of Amsterdam itself, such an area designation offers a proven and effective means of enforcing regulations on illegally parked delivery bicycles. In this way you can also regulate parking of bicycles.

Taping off the shop space, if that would be an issue, can be enforced on the basis of building regulations I already wrote in my previous blog. Traffic density is also difficult to regulate via a zoning plan. In an ordinary shop, people come to shop by bicycle or scooter all day long. Just like bicycle deliverers, doesn’t that generate a lot of traffic? Perhaps even more than just bike deliverers who cycle back and forth. In other words: the municipality should investigate whether flash drives do not cause less traffic in a shopping street than the location of the flash drive. I mention this because many such decisions fail in court due to inadequate substantiation.

Noise pollution in city centre shopping streets

Is noise pollution in a shopping street a reason to ban shops with delivery services? That question arises when there are complaints from residents who live near shops where there is bicycle traffic. Noise pollution is inherent in city centres. Local authorities have discretion when assessing whether the living conditions in the vicinity of shops offering delivery services are adversely affected in an unacceptable manner. The existing planning situation is a major determinant of the environmental quality. In most municipalities, the rules of the General Municipal Bye-Law and the Activities Decree apply to noise.  The Activities Decree offers possibilities for municipalities to adjust the acoustic standards to what is desirable locally. This can be done in the General Municipal Bye-Law. For concentration areas for the catering industry and concentration areas for retail trade and craft trades, the municipality can specify noise levels within legal limits. This is not regulated in Amsterdam. However, there is the Action Plan Noise Amsterdam 2020-2023. It does not mention nuisance in the surrounding area. It does mention, for example, the nuisance caused by mopeds and motor-assisted bicycles and the introduction of the environmental zone, but it does not mention the (noise nuisance caused by) the increase in electric scooters and bicycle delivery vehicles. The noise map of Amsterdam shows that a number of streets are already subject to (very) high noise levels. To what extent bike deliveries will add to this noise pollution seems doubtful to me. This does not alter the fact that noisy bicycle deliveries may cause nuisance at retail outlets. The most obvious solution is to ensure that the bicycles of bike delivery drivers are parked in the designated bays, or parked inside and wait for their next trip in the shop. This could also be included in a zoning plan for the retail trade. With a good conversation with the store manager of a bicycle delivery company, the municipality can arrange matters more quickly, it seems to me.

The limits of government involvement in branching retail stores

Branching means that a zoning plan or preparatory decision makes a distinction between branches of retail trade that are or are not permitted on the grounds. Interference with the retail grading of shops can only take place for the benefit of good spatial planning (Article 3.1.2 of the Spatial Planning Decree (Bro)). This means that there must be spatial relevance. If municipal regulations are in conflict with good spatial planning, the courts can intervene. Branch restrictions must also comply with the Services Directive; they must be non-discriminatory, necessary and proportionate. Many municipalities have determined that retail trade must be established primarily within or immediately adjacent to the shopping areas in the centres of towns and villages. Deviations from this often lead to lawsuits. For example, the proposed establishment of sports and leisure shop Decathlon outside the city centre. Also read this blog also: Opportunities for retail businesses through the Services Directive.

The substantiation of the branching of retail stores must be done on the basis of specific data. In June 2018, the Council of State ruled in an interlocutory decision that the City Council had demonstrated the necessity of the regulation, but had not substantiated well enough that allowing regular retail on the Woonplein would make the centre area less attractive and liveable. After a new motivation, the court confirmed the branching decision, as a result of which a shoe shop was not allowed to establish itself at a peripheral retail location. The government may not restrict the freedom of entrepreneurs to establish themselves and sell products too much; the outlined legal framework must be respected. A permit for a retail establishment could only be refused if there would be a sustainable disruption of the level of facilities (for example, a large oversupply) and vacancy levels would rise to such an extent that the spatial consequences would be unacceptable. This is not likely to happen.

Blenheim advises entrepreneurs on, among other things, government decisions that affect their business and the legal possibilities of taking action against them. The retail desk will be happy to help you.