Judgment date: March 1, 2023
The First Relief Judge of the Administrative Judicial Department of the State Council ruled on the application for interim relief (Article 8:81 of the General Administrative Law Act) in the proceedings between:[verzoeker]lives in Benthuizen, municipality of Alphen aan den Rhine,
Alven aan den Rijn Municipal Council,
By the decision of June 16, 2022, the Council adopted the zoning plan “Reallocation of floriculture outside the perimeter of 2021”.
against this decision [verzoeker] Filed the appeal.[verzoeker] He asked the court to grant temporary relief.
The council has submitted a statement of defence.[partij] Made a written statement.
The Preliminary Relief Judge heard the motion in a hearing on February 14, 2023, where [verzoeker], with the assistance of Mr. J. A. Huijgen, solicitor at The Hague, and attending the council, represented by J. R. Prins. In addition to [partij]With the assistance of Mr. CJR van Binsbergen, solicitor at Bodegraven, he was heard as a party to the hearing.
1- The judgment of the Court of First Instance Court is of a temporary and non-binding nature in the procedures related to the merits.
2. The approved zoning plan allows for 12 different developments, spread over the municipality of Alphen aan den Rhine, all located outside the area of concentration of trees and floriculture in the Greenport Boskop district. One of these developments is the construction of a house on a piece of land that has not yet been developed among the plots of land [locatie 1] And [locatie 2] in Benthuizen. In the zoning plan, part of this land was given a residential destination where an agricultural destination had previously applied. The council has allowed a house to be built here as compensation for the repair of the site of Noordpolder (next to) 11, which is within the floriculture concentration area.[verzoeker] He lives [locatie 2]. He does not agree that a house has become possible right next to the plot of land and has appealed against the zoning plan. He has asked the Primary Relief Judge to suspend the partition plan until a decision is made on his appeal.
3. The zoning plan has already entered into force. Accordingly, the Municipal Executive Director granted an environmental permit to the house [partij]. [verzoeker] I objected to it. The Council has not yet decided on this appeal. This means that [verzoeker] Has an urgent interest in the requested suspension of the zoning plan.
The principle of trust
4. [verzoeker] He argues on appeal that the council breached the confidentiality principle by making the house possible. Argued so on the part of the municipality earlier [partij] I was informed that a neighbours’ agreement was required, in other words a statement from the locals that they could agree to the new house. [verzoeker] He always indicated that he could not agree with the new house.
4.1 A person invoking the principle of secrecy must make it reasonable that there are obligations or other representations made or actions performed on the part of the government from which he can and must reasonably infer in the particular circumstances whether the administrative authority will exercise a particular power And if so, how. It is also required that the commitment, statement or other conduct be attributed to the appropriate administrative authority. This is the case if the person concerned can and should reasonably assume in the given circumstances that the person making the statement or conducting the conduct represents the opinion of the competent institution.
Room-by-room control app
5. [verzoeker] He argues on appeal that the zoning plan is inconsistent with the principles of the “space-by-space plan within Greenport Regio Boskoop Tree and Flower Concentration Plan” (hereinafter: space-by-space plan). One starting point is that quality gains must be made not only at the repair site (here Noordpolder (near) 11), but also at the compensation site (here the plot between [locatie 1] And [locatie 2]for which a partition plan has been drawn up). The Board has not assessed whether quality gains will be achieved at the offset site, as it is outside the area of concentration of trees and floriculture itself. It only assessed whether quality gains were achieved in a balanced manner. This is according to [verzoeker] Unwarranted, because the space-by-space scheme states that it can also serve up handles for sites outside that region, so quality gains must also be achieved at the offset site. These quality gains are shown here [verzoeker] not done. According to him, this is not possible here with the permission of the house. This site is located in the “Buffer Green Zone” regional protection area. Here the “non-urban” quality must be preserved and enhanced wherever possible. There is also a “peat reclamation” landscape type. This is an open landscape that features many openings between courtyards. Allowed housing corresponds to this [verzoeker] not with you. Finally, he argues, a condition for applying the room-for-room scheme is for the work to be completely terminated. This is not the case here. The company that was active at the repair site is still present and active at Noordpolder 17-19. The treatment plan doesn’t change that either. Work is not terminated at the compensation site either, because there was never work there. Therefore, Section 8 (8.4.1) of the Plan Rules, which provides for the complete termination of the Business, cannot be complied with.
5.1 The Preliminary Relief Judge is not a priori satisfied that the requirement applies in this case that gains in quality must also be achieved at the site of compensation on a space-by-space scheme basis. This scheme is intended to improve the Greenport Boskoop area, while the compensation site is located outside of it. It is true that Section 1.3 states that the evaluation framework for this bylaw can also provide guidance for locations outside of it, but that does not mean that the Board is obligated to apply this evaluation framework here. The Board explained that it found no reason to do so in this case, because “the vision document diverts companies beyond contour floriculture, spatial quality advice” (hereinafter: the vision document) provides its own assessment framework for the area within which the offset site lies. In the preliminary relief judge’s interim opinion, this is not unreasonable and the board should apply the criteria in this vision document, and therefore it is sufficient to assess whether gains in quality have been achieved in a balanced manner.
5.2 In its assessment of whether it considered the house spatially acceptable, the Board recognized that the site was located in the buffer green. In this context, the council made a logical assessment of whether the house fits the identity of the existing area, whether the house does not lead to change at the structural level, and whether the house fits the nature and size of the area and whether it meets the requirements of the area. Relevant guidelines for the quality label with the regional environmental order. The Board also conducted a rationale assessment against the applicable quality standards that apply to the site on the basis of the vision document: “Maintain openness/wideness”, “Recognizable structures in a landscape unit”, “Distinctive edges of a landscape unit” and “Ribbons remain ribbons”. “. The Preliminary Relief Judge sees no reason to assume that the site in the Green Buffer Zone and the criteria set forth by the vision document stand in the way of the addition of a house in all circumstances. What the court considers in the preliminary relief proceedings [verzoeker] Therefore, no reason was given to suppose that the assessment made by the Board would not hold up in the proceedings on the merits.
5.3 In so far as it must be assumed that the Council should have allowed the house only if there had been a complete termination of work on the repair site, the Preliminary Relief Judge finds it clear that the deciding factor was whether there were no longer any work activities on the plot in question. [verzoeker] It is erroneously presumed, in the opinion of the Preliminary Relief Judge, that a company which carried on commercial activities on that land must have ceased wholly, also in so far as that company carried on commercial activities on other plots of land. Of the sections of the answer note which views [verzoeker] In this regard, it cannot be concluded that the Council assumes this. Such an interpretation is also not straightforward, given the spatial goal pursued by a space-by-space scheme and where gains can also be made through reform at the plot level.
5.4. With regard to the argument about Article 8, Paragraph 8.4.1, of the Planning Rules, the Preliminary Relief Judge finds the following. This paragraph contains a potential obligation. In short, as far as it is appropriate here, it has to do with the fact that it is forbidden to use the land on the dam [locatie 1] And [locatie 2] (compensation site) for its use of a new home, without terminating the existing agricultural business on the site entirely and terminating the existing environmental rights vested in the company. The Preliminary Relief Judge first and foremost stated that this was not a condition that had to be met before the zoning plan could be adopted by the Council. The question to be answered in the merits proceedings is whether the zoning plan is feasible given this conditional obligation.
Assuming that this contingent liability is to be assumed to relate to the site of compensation, it follows from what has been considered above that this obligation is neither intended, nor required, to secure quality gains through repair at the same site of compensation. Therefore, in the opinion of the Primary Relief Judge, it is not important whether or not commercial activities took place at the site of compensation in the past. The contingent commitment is important to ensure that the assigned residential function does not interfere with any existing agricultural activity at the offset site. However, in light of the documents and photos shown, the Primary Relief Judge assumes that no commercial activities are currently taking place at the offset site and no environmental rights apply. For this reason alone, the Preliminary Relief Judge sees no reason to suppose that the zoning plan will not hold up in the principal proceedings as to the viability of the conditional obligation.
6. In light of the above, the application must be rejected.
7. The Council is not required to pay legal costs.
First Instance Judge of the Administrative Judicial Department of the State Council:
He rejects the request.
It was thus established by Mr. BJ van Ettekoven, Judge of Preliminary Relief, in the presence of Mr. JN Witsen, Registrar.
W.G. Van Eticoven
Primary relief judge
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