Planning and environmental issues
Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?
Under the Spatial Planning Act all municipalities are required to adopt one or more zoning plans for municipal grounds and to update these every 10 years. A zoning plan is formally adopted by the municipal council; this designates the allowed use of land and imposes restrictions on buildings thereon, with regard to height and other dimensions. The municipal council has a great deal of discretion when it comes to designating the allowed use of land. The administrative judge only marginally assesses whether the choices made by the municipal council in a zoning plan are reasonable and in line with sound spatial planning. In case of overriding regional or national interests, a regional zoning plan or a national zoning plan may be adopted by the provincial council or the minister of infrastructure and the environment, respectively.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
Developing real estate must be allowed for under the applicable zoning plan. If the zoning plan does not permit the planned activities, the development requires a zoning plan amendment or an integrated environmental permit for deviating from the zoning plan under the Environmental Protection Act. The development must be in line with sound spatial planning. Various other permissions may be required, such as permission for building. This also depends on the scope of the planned activities and their impact on the environment. For instance, if the activities may negatively affect protected species in a designated Nature 2000 area, the activities would also require a permit under the Nature Protection Act. In general, a permit application must contain sufficient information to enable the competent authority to assess whether all requirements have been met for granting the required permission. If a permit application does not contain sufficient information, the competent authority must request additional information before considering the application.
Can planning decisions be appealed? If so, what is the appeal procedure?
While planning decisions can be appealed they are first subject to reviews or objections. An extended preparation procedure applies to the adoption of a zoning plan. Part of this involves the publication of a draft version of the decision. Following the publication of the draft decision, interested parties have six weeks to submit views. The municipal council must take all submitted views into account when adopting the zoning plan. Any appeal against a zoning plan must be lodged with the Council of State within six weeks. The council’s judgment on the adopted zoning plan is final. Other planning decisions will, in principle, be adopted in accordance with the regular preparation procedure and are, accordingly, subject to objections before the competent authority first. The competent authority’s decision on the objections may be appealed to the district court within six weeks. A higher appeal against the district court's judgment can be lodged with the Council of State within six weeks.
What are the consequences of failure to comply with planning decisions or regulations?
Not complying with planning decisions or regulations constitutes a violation of said decisions and regulations and is thus prohibited. Such a violation may result in enforcement action by the competent authority, either ex officio or upon the request of an interested party. Under well-established case law from the Council of State, a competent authority is obliged to take enforcement action against a violation. Only in exceptional circumstances (ie, when enforcement action would clearly have unreasonable consequences or when legalisation is imminent) may a competent authority decide not to take enforcement action. In general, enforcement action by a competent authority will take the form of a penalty order or administrative coercion. However, a violation may also constitute a criminal offence and may therefore also be criminally prosecuted, although this is not common in spatial planning matters.
What regime governs the protection and development of historic and cultural buildings?
The regime which governs the protection and development of historic and cultural heritage is set out in the Heritage Act, which entered into force on July 1 2016. Among other things this establishes a certification system for carrying out excavations. This certificate must be issued by a certifying institution, which assesses whether the party is suitable for carrying out the excavation activities. The act also contains more general provisions regarding the preservation of historic and cultural heritage. In addition, particularly with respect to historic and cultural buildings, the Environmental Protection Act establishes that demolishing, changing or disturbing a designated monument requires an integrated environmental permit. In principle, the regular procedure applies to the granting of such permit, but if the activities are of a severe nature, the extended preparation procedure may apply instead.
What regime applies to government expropriation of real estate?
The regime established by the Expropriation Act applies to the expropriation of real estate and comprises two phases. The first phase consists of an administrative expropriation procedure which must be followed by the government. According to this, a government body (eg, a municipality) will submit a request to the crown (on the recommendation of the minister of infrastructural works and the environment) to designate an area for expropriation. Interested parties may file legal proceedings against the designation. In the second phase, once the area for expropriation has been designated, the government can initiate a civil expropriation procedure before a civil court. The court will determine the amount of compensation payable to the owner of the expropriated area in this procedure.
What is the required notice period for expropriation and how is compensation calculated?
Many terms and periods apply in an expropriation procedure, which can be lengthy. The government will approach the land owner to discuss a sale of the real estate first without initiating a formal expropriation procedure.
The compensation method set out in the Expropriation Act aims to compensate for all damages which occur as a direct and necessary result of the expropriation. These may consist of financial losses such as the value of the real estate, compensation for annual losses such as loss of income and also one-off costs such as relocation expenses.
What environmental certifications are required for the development of real estate and how are they obtained?
Many permits and approvals may be required for the development of real estate, including the following:
- An environmental permit for building activities – this will have to be applied for with the municipality before building activities may commence. If the facility has a severe impact on the environment, it will be necessary to obtain an integrated environmental operating permit.
- An environmental notification under environmental law for operating a ‘facility’ under the Activities Decree – this must be submitted to the municipality four weeks before the real estate is constructed.
- A fire safety notification or permit – this may have to be applied for with the municipality in consultation with the local fire department and will contain restrictions in the interests of fire safety.
- Other permits may be required as well, such as a water permit for operating a thermal storage system and a Nature Protection Act permit for any impact on protected species and local permits.
What environmental disclosure obligations apply to real estate sales?
There is no specific rule on disclosure of environmental information in real estate sales transactions. However, under the Civil Code the seller must disclose information – including information that it should know that may be relevant to the buyer – while the buyer is also obliged to make its own due investigations. Although this depends on the merits of the case (including on the professionalism of the parties involved and what information is already available in the public domain, such as soil contamination registered in the Land Register), typically the seller’s disclosure requirement will prevail over the buyer’s duty to investigate. The seller is thus likely to be liable for any failure to disclose information which was not self-evident to the buyer. In transactions, it is common for the buyer to require warranties and indemnities for environmental matters from the seller. Usually, this is in itself a driver for the seller to disclose information. Environmental items which are quite often discussed in a transaction are the presence of asbestos and soil contamination.
What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?
The polluter is primarily responsible for the contamination of property. If the polluter no longer exists or is not creditworthy, the land owner or leaseholder could, under certain circumstances, be held responsible, regardless of whether they contributed to the contamination. However, the authorities have the discretion to decide whether to assign responsibility for remediation to either the polluter or the land owner.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
Several laws and other initiatives are in place aimed at reducing greenhouse gas emissions and improving energy efficiency. Most noteworthy are:
- the National Energy Agreement for Sustainable Growth between the Dutch government and several civil parties; and
- the Dutch implementation of the EU Energy Efficiency Directive (2012/27/EU) which requires companies to conduct energy audits every four years in order to identify energy-saving measures which could lead to lower energy consumption by their businesses. In addition, all energy-saving measures with a payback period of five years or less must be undertaken.
An amendment of the Building Decree 2012, aimed at improving energy efficiency in office buildings, is due to come into force in the first half of 2017. The amendment introduces an obligation to upgrade office buildings so that these will (at a minimum) meet C-Energy label requirements. The upgrades should be completed before January 1 2023.
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