New Spatial Planning Act (5): Adjustments to the Municipalities Pre-emption Right Act
In the (Dutch) Newsletters of June, July, August and September
2008 we already discussed a number of important consequences of the
new Spatial Planning Act (Wet op de ruimtelijke ordening,
"Wro"). This month we will go into the consequences of
the new Spatial Planning Act for the Municipalities Pre-emption
Right Act (Wet voorkeursrecht gemeenten,
"Wvg").
Grounds for Establishing a Pre-emption
Right
The Wvg was amended as of 1 July 2008, because the Act had to be
adjusted to the new planning schemes in the new Wro. With the
introduction of the new Wro a number of plans have disappeared,
such as the structure plan and the urban renewal plan. Instead, new
plans have been created, such as the structural concept and the
project decision. The Wvg was adjusted to these new plans. If a
structural concept, a project decision or a zoning plan include
lands, which were not earmarked for agrarian use, and the actual
use of the land deviates from the earmarked destination, then the
municipal council may establish a pre-emption right under the new
Wvg. In order to allow municipalities to pursue an active land
policy, the council may also, on certain conditions, establish an
early pre-emption right in anticipation of the adoption of such
plans. Even before that time, and in order to be able to react
directly to developments on the market, the Municipal Executive may
establish a preliminary pre-emption right on certain
conditions.
Provincial and National Pre-emption
Right
The amended Wvg allows not only municipalities, but also
provinces and the central government to establish a pre-emption
right. In the new Wro, provinces and the central government also
have the right to adopt a structural concept, an integration plan
(municipal or national zoning plan) and a project decision. In
connection with this, the legislator has also granted the
Provincial Council and the Minister of Housing, Spatial Planning
and the Environment ("VROM") the power to establish a
pre-emption right.
The establishment of a provincial or a national pre-emption
right is subject to various conditions. First of all, the
Provincial Council or the Minister of VROM may only establish
pre-emption rights if they will personally adopt a zoning plan.
Secondly, they may only establish pre-emption rights if national or
provincial interests so require. Finally, there has to be a real
intention to adopt an integration plan or a project decision, which
will also be executed by them personally.
One
Pre-emption Right at a Time
The new Act is based on the starting point that only one
pre-emption right at a time can be vested in a plot. If a municipal
pre-emption right is vested in a plot and the province then
encumbers the same land with a pre-emption right, the municipal
pre-emption right will lapse by operation of law. The same applies
in the event that a provincial pre-emption right has already been
established and the Minister of VROM subsequently establishes a
pre-emption right. If a pre-emption right of a higher
administrative authority is vested in the lands, the lower
administrative authority no longer has the power to establish a
pre-emption right on these lands.
Automatic Continuation
of Pre-emption Right
Under the former Wvg, a pre-emption right had to be re-adopted
whenever a new planning plan was adopted. The legislator assumed
that the planning process for the desired development would become
ever more concrete. The early pre-emption right would be followed
by a pre-emption right on the basis of a (draft) structure plan,
and subsequently a (draft) zoning plan. With each new plan the
pre-emption right would have to be re-established.
In the new Wvg it is not required anymore to re-establish the
pre-emption right time and again. Once a pre-emption right has been
established, it continues automatically when the next planning
decision has been adopted within the applicable statutory period.
If the next spatial planning decision has not been adopted within
the prescribed period, the pre-emption right will lapse by
operation of law. This legal system carries the important advantage
for the authorities of not having to go through a new procedure for
the establishment of a pre-emption right every time. However, for
landowners an important disadvantage is that they now have recourse
to legal remedies against the establishment of a pre-emption right
only once.