In a densely populated country like the Netherlands, where room is becoming more and more scarce, it is important that spatial development procedures are carefully followed. For interested parties, it is important to follow such procedures carefully as well, and to object against any undesired developments in time and in the correct manner.
By law, certain procedures require that, to that end, you submit an opinion on a draft plan before – after the relevant plan is adopted – the proceedings can be brought before the court on appeal. An example of this is the zoning plan procedure. If you have failed to submit an opinion on the draft plan, the appeal against the adopted plan will in principle be held inadmissible. In such case, the proceedings will be unsuccessful due to a failure to observe a procedural requirement (submitting an opinion) and the court will not even consider the substance of the appeal. An example of this is a decision of 8 June of this year of the Administrative Jurisdiction Division of the Council of State (‘the Division’).
This case centred around the construction of a soil wall with a baffle board and water storage. In order to make the construction thereof possible from a planning point of view, the Provincial Council of Utrecht submitted a draft provincial zoning plan amendment for consideration. The procedure for a provincial zoning plan amendment is similar to that for a municipal zoning plan. The planning area of the provincial zoning plan amendment was situated within the territory of the municipality of Woerden. The municipal executive of the municipality of Woerden (‘the executive’) submitted an opinion on the draft provincial zoning plan amendment on behalf of the municipal council of the municipality of Woerden (‘the council’). However, on appeal, the council objected against the provincial zoning plan amendment on its own behalf. As the council had not submitted an opinion on the draft provincial zoning plan amendment (after all, the executive had done that on behalf of the council), the Division held the council’s appeal inadmissible. The substance of the appeal was never even considered!
This decision shows how important it is to object to undesired planning developments in the correct (procedural) manner, and in time. Even administrative bodies (in this case, the executive) make very costly procedural mistakes in this. Therefore, it is important that you acquire expert legal advice in time in order to be able to take the procedural ‘hurdles’ and have the court consider the substance of the case. Despite the fact that legal representation by a lawyer is not compulsory in administrative law, engaging a lawyer can prevent unpleasant surprises after the fact, and contribute to successful proceedings.
If you have any questions about this subject, you can contact Ben van Nieuwaal.
