In January 2020, the Council of State issued an important ruling on the relationship between a management regulation and so-called “umbrella zoning plans. A management ordinance is in fact a zoning plan, but without an appeal to the administrative court. Such an administrative order may not substantially expand the building and use rules in the area and is therefore suitable for areas where no major spatial changes are planned. The municipal council is of course authorized to subsequently adopt a zoning plan for an area subject to an administrative order. The Spatial Planning Act (Wro) states that in such a case, the administrative order lapses by operation of law.
Umbrella zoning laws are common…
The January 2020 ruling dealt with a common situation. A municipality had adopted an umbrella zoning plan. An umbrella zoning plan is a zoning ordinance that applies to multiple zoning plans and adds or modifies some rules to those existing plans. Common umbrella zoning plans deal with parking, use of housing for housing migrant workers, or protection of archaeological values in the soil.
… also in areas subject to management regulations
The Council of State nullified an umbrella zoning plan in its January 2020 ruling. The Council of State pointed out that if an (umbrella) zoning plan is adopted for an area subject to a management ordinance, the management ordinance lapses to that extent. Since that cannot have been the intention, the State Council annulled the zoning plan.
Management ordinance or umbrella zoning plan: which takes precedence?
However, many umbrella zoning ordinances have been adopted for areas under management ordinances, which have not been appealed, or at least not on this issue. Would all those management ordinances now have expired? That would have huge implications, because it would no longer be possible to enforce on the basis of management regulations. Jurists therefore looked forward with great interest to the next ruling of the Council of State on this issue.
That happened on Oct. 28, 2020. At that time, the Council of State ruled in an enforcement case. It was about activities that violated a management ordinance. The municipality acted against it. The violator was clever and invoked the State Council’s January 2020 ruling in the proceedings. He argued that based on the management ordinance, enforcement could not take place because an umbrella zoning plan had been adopted for the area in question. And so, the violator said, the management ordinance had expired. Therefore, no enforcement action could be taken against violation of the rules of that management ordinance either.
Management ordinance survives, umbrella zoning plan is ineffective
The Council of State now had to decide whether the entire management regulation had indeed lapsed. The Council of State chose the solution with the most legal certainty: the administrative regulation remains in force, the umbrella zoning plan is – at least at the location of the administrative regulation – non-binding. According to the Council of State, it is not possible to add regulations to a management ordinance via a zoning plan. Both instruments are different and have a different legal basis.
Municipalities can therefore breathe a sigh of relief (somewhat): if an umbrella zoning plan has been adopted for an area subject to a management ordinance, the management ordinance remains in force. On the other hand: the umbrella zoning plan is non-binding. Even if nobody has appealed against that umbrella zoning plan: “that non-bindingness is there by operation of law.
Municipalities must therefore quickly identify the areas for which both a management regulation and an umbrella zoning plan have been adopted. They must bring an amended administrative order into procedure. In this way, for example, sufficient parking space can still be provided for building initiatives, action can be taken against the housing of immigrant workers, and archaeological values can be protected.
Our lawyers in the Government practice group can provide input on how municipal councils can best deal with zoning plans and management regulations. We are also happy to assist with other questions in the field of spatial planning and, more broadly, the physical living environment.
This contribution was written by Mr. Rudolf van Binsbergen , affiliated with the Government and Real Estate practice groups.
