On 20 June 2018, the Administrative Law Division of the Dutch Council of State (the highest Dutch administrative court) (ALD) issued a judgement that again demonstrates the considerable burden of proof with respect to private law impediments.
A municipal council cannot adopt a zoning plan if a “private law impediment” exists that would block the realization of that plan. A private law impediment may, for example, exist in a case where the municipality wants to develop residential units, but the land on which it seeks to develop is owned by a non-cooperating third party (and expropriation is not possible or desired). Such a third party can invoke the private law impediment as grounds for judicial nullification of the zoning plan.
However, private law impediments must be “obvious.” In its 20 June decision, the ALD provided additional clarity as to when a private law impediment is obvious.
In Waddinxveen in the Netherlands, the municipal council adopted a zoning plan that allowed for the building of 24 residential care units. An “owner” of nearby premises objected to this zoning plan on the basis of private law impediments; a piece of land he claimed as his own was designated in the zoning plan to be an access road and parking lot. But his claim to the land was not clear-cut. He alleged to have become the owner of that plot through prescription (the passage of time).
Existing Dutch case law says that a private law impediment is “obvious” only if no prior research is needed to establish that the development will intrude on a third party’s rights to a premises and if this third party does not have to resign itself with this development. In this case, the ALD ruled that the prescription argument should first be presented to a civil law judge, as the third party’s claim remained open to debate, and further research was needed to ascertain whether execution of the zoning plan would affect the property of the third party. The third party’s claim to the plot was therefore not considered a private law impediment. As a result, the ALD did not nullify the zoning plan.
Burden of Proof
This verdict demonstrates that the burden of proof with respect to a private law impediment is not easily met, and that it can be important to proactively establish in civil court (non-obvious) ownership rights to a plot in order secure protection against unwanted zoning developments.