When establishing a zoning plan, the municipal council must designate destinations and issue rules. These must be necessary from the point of view of good spatial planning. If an appeal is lodged against the adopted zoning plan, the Administrative Jurisdiction Division of the Council of State will not itself determine whether the plan is in accordance with good spatial planning. Based on the grounds for appeal, its assessment is limited only to the question of whether the council could reasonably take the position that the plan serves the purpose of good spatial planning. Appeal procedures often concern the question of whether new destinations, which conflict with existing destinations, are in accordance with the requirements of good spatial planning.
On March 14, 2018, the Divisionย ruled ย in a case in which the Aalsmeer council had adopted a zoning plan in which agricultural land, previously used for a greenhouse horticulture company, can be redeveloped for residential recreation in accordance with the new zoning plan. . At first glance, these destinations do not seem to be compatible with each other, because users of holiday homes could, for example, complain about the adjacent greenhouse horticulture company, for example about the use of pesticides. This risk particularly occurs if the holiday homes, as was the case in this case, can be built a very short distance from the greenhouse horticulture company.
The viburnum and lilac nursery located next to the redevelopment area was not exactly happy with this development and has therefore appealed against the adopted zoning plan. On appeal, she has opposed the planned holiday homes and the expansion of the residential destination compared to the previously applicable plan, because she fears that the plan will lead to unacceptable obstacles to her business operations. There is approximately 11.5 m between the plan part with the destination “Recreation – Accommodation Recreation” with the designation “building area” and the plan part that relates to the land of the adjacent greenhouse horticulture company. Between the plan part with the destination “Residential” and the plan part that relates to the grounds of the greenhouse horticulture company is approximately 17 m.
Contrary to what the municipal council has stated, the Department is of the opinion that, just as is the case with camping facilities ( see ABRvS 23 September 2009 ), a recreational home is a sensitive function. Because it is possible to stay and spend the night on the site, it has a residential function. This therefore means that it cannot be stated that there is no risk of health damage when using crop protection products on adjacent plots. By taking the position that a holiday home is not a sensitive function, it appears that the council wanted to put the consequences for the greenhouse horticulture company into perspective. The Department does therefore not agree with this and a holiday home is therefore a sensitive function.
According to the VNG brochure, horticultural companies (except for mushroom farms with manure fermentation) are classified as companies in environmental category 2. For these companies, a target distance of 30 meters is recommended if the area can be classified as a quiet residential area or quiet rural area. This target distance can then be reduced by one distance step if the environment type is a mixed area. In that case, a target distance of 10 meters is recommended. A mixed area is an area with a moderate to strong mix of functions. Ribbon development in the countryside with predominantly agricultural and other activities can be regarded as a mixed area.
According to the Department, the council of the municipality of Aalsmeer has rightly taken the position in this case that the target distance can be reduced by one distance step, because it is a mixed area environmental type. This means that the recommended target distance is 10 meters. Because the distance between the plan parts with the destination “Residential”, respectively the destination “Recreation – Accommodation Recreation” with the designation “building area” and the plan part that relates to the land of the greenhouse horticulture company is approximately 17 meters and 11.5 meters respectively. According to the Department, the council rightly takes the position that the recommended target distance is met.
A location-specific spray zone study assessed whether the sensitive functions made possible by this zoning plan are acceptable, given the horticultural business. The conclusion of this study is that without further measures there is an acceptable living environment within the plan area and that the business operations and future development opportunities of the greenhouse horticulture company are not hindered as a result of the plan.
It follows from the aforementioned ruling of 23 September 2009 that a planning decision to maintain a distance of 50 meters between sensitive functions and agricultural activities involving the use of crop protection products is generally not considered unreasonable. In the present case the distances were approximately 17 meters and 11.5 meters. Nevertheless, the Department accepts these shorter distances in this case.
The Department attaches importance to the Location-specific spray zone study, which concludes that without further measures there is an acceptable living environment within the plan area and that the business operations and future development opportunities of the greenhouse horticulture company are not hindered as a result of the plan. Partly because the nursery did not contest this study (or did not contest it properly), the council was able to reasonably take the position on the basis of the Location-specific spray zone study that the plan will not lead to obstacles to the nursery’s business operations. Despite the short distance between the greenhouse horticulture company and the sensitive function, the zoning plan has therefore become legally untouchable.
The Department assesses a zoning plan marginally and does not take the place of the municipal council. If the council properly motivates a zoning plan and, for example, as in this case, bases it on a spray zone study, the Department will generally accept the council’s spatial assessment. However, the fact that the council wrongly stated in justification of its decision that residential recreation could not be regarded as a sensitive function does not mean that the zoning plan cannot be maintained, even though the question may be raised whether the council might accept this statement . because he felt that the compatibility of the nursery with residential recreation was somewhat at odds.
The content of this blog is general in nature and no rights can be derived from it. If you have specific questions or would like advice, you can contact Mr. Michel Plug by telephone or e-mail ( michel.plug@cees.nl ) without obligation.
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