On 31 January 2018, the Dutch Council of State [Raad van State] (ECLI:NL:RVS:2018:348, in Dutch only) determined that the transformation of Villa ArenA, a property used exclusively for retail trading in home fixtures and furnishings, into a property to be used for large-scale retail trading without a mandatory home furnishings and fixtures component, cannot be considered as an urban development project (or a change to such) as meant in the Dutch Environmental Impact Assessment Decree [Besluit m.e.r.] (“EIA Decree”).

The question as to whether a certain activity can be considered an urban development project (or a change to such) is relevant to the question of which procedure should be used to grant an environmental permit [omgevingsvergunning] in deviation from a zoning plan [bestemmingsplan]. If the situation in question is one that is included on the list of minor deviations laid down in Article 4 of Appendix II to the Dutch Environmental Law Decree [Besluit omgevingsrecht] (“BOR”), the permit can be granted through the regular procedure, which generally has a turnaround time of eight weeks. In practice, the broad option provided for in Article 4, part 9, of Appendix II to the BOR (the use of buildings – possibly along with construction activities that will not increase the size of the developed area or the structural volume – and the site adjacent to the buildings)is usually invoked for the transformation of existing buildings. The possibilities for applying the minor deviations is limited by Article 5, paragraph 6, of Appendix II to the BOR, pursuant to which Article 4, part 9, does not apply to, inter alia, the construction, change, or expansion of an urban development project as meant in column 1 of category 11.2 of part D of the Appendix to the EIA Decree. In that case, the comprehensive procedure must be used, which has a turnaround time of six months.

Whether a project is an urban development project (or a change to such) as defined in the EIA Decree depends, according to the decision (in Dutch only) issued by the Administrative Law Division of the Council of State (“Division”) on 15 March 2017, on the specific circumstances of a given case. The aspects that play a role in this regard include the nature and scope of the proposed change to the urban development. According to the Division, not every change to an urban development need be considered an urban development project (or a change to such) as meant in the EIA Decree.

One finding that has been making a regular appearance in the Division’s case law, and that leads to the conclusion that a situation does not involve an urban development project (or a change to such), is that the size of the developed area will not increase as a result of the change in function. That was also the case in the decision of 31 January 2018.

The Division found that while the transformation will entail retail activities of a broader scope, the use of the property will still be focused on retail activities. Moreover, according to the Division, the change in function will not be coupled with an increase in the size of the developed area, which means that the project will leave the structure and design of Villa ArenA virtually unchanged. Given this, the Division held that the project would not constitute an urban development project (or a change to such) as meant in the EIA Decree.

Although we consider this defence – that a development that does not result in an increase of the size of the developed area cannot, under certain circumstances, be considered an urban development project as meant in the EIA Decree – to be a tenable one, we wonder why the Division considered it important in this particular case to make specific a finding that the change in function would not be coupled with an expansion of the developed area, particularly since the issue of the case was the application of Article 4, part 9, of Appendix II to the BOR. As indicated above, that part already presumes that the developed area and/or structural volume will not be enlarged. The value of memorialising that finding in case law therefore escapes us.