Order 20100837/1 / R3 – Council of State

202010837/1 / R3.
Judgment date: June 8, 2022

DEPARTMENT
ADMINISTRATIVE JURISDICTION

Decision on appeal of:

[appellante]established in Lemmer, De Fryske Marren municipality

against the judgment of the District Court of the Northern Holland of 21 December 2020 in Case No 20/962 in the case between:

[appellante]

and

the College of Mayors and Councilors in the Frisian Lakes.

Process sequence

By decision of 30 September 2019, the Board of Directors granted the request of [appellante] to take coercive action against the use of the premises at the address [locatie] in Lemmer as music school, rejected.

By a decision of 30 January 2019 (read: 2020), the folk high school has passed it on [appellante] objection to this is declared unfounded.

By decision of 21 December 2020, the court passed it on [appellante] complaint about it was rejected. This statement is attached.

Against this statement [appellante] appealed.

The college and [partij] has given a written opinion.

The department heard the case in court on April 5, 2022, where [appellante]represented by Mr KJT Boersma, lawyer in Tiel, [gemachtigde A] and [gemachtigde B], and the college, represented by RM Posthuma, has emerged. Furthermore, during the hearing [partij]assisted by J. de Ruiter, lawyer in Kampen, heard as party.

Considerations

Introduction

1. [appellante] is the owner and landlord of the property at the address [locatie] in Lemmer (hereinafter: the apartment). [partij] is the tenant of this apartment. From here he gives music lessons in playing piano and guitar. The teaching takes place mainly individually, but also in small groups of two or three students and usually takes place between kl. 13.00 and 21.15. He presents the activities to the outside world under the name “De Muziekflat”.

[appellante] has asked the council to take action against the use of the apartment as a music school by [partij]because it is contrary to the zoning plan. The Commission rejected this request for enforcement action because, according to the Commission, there was no infringement. Of the decision of 30. September 2019, confirmed by a decision of 30 January 2020, it appears that according to the folk high school, it is allowed to provide music education on the basis of the area plan “Lemmer Centrum”, because this falls under the definition of services. as contained in Article 1.28 of the Planning Rules.

The affected statement

2. The court has determined that the activities fall within the definition of the concept of service, which was contained in section 1.28 of the planning rules. As on – site services are allowed, the court finds that there is no infringement and the Commission rightly rejected the request for enforcement action.

Appendix

The relevant planning rules are set out in the Annex, which forms part of this Decision.

Assessment of complaint

4. [appellante] claims that the court erred in finding that the activities could be regarded as services within the meaning of Article 1.28 of the plan. In its view, this is not really an office function or a comparable application, as described in the plan statement. Instead, according to her, a music school falls under “culture, sports and recreation”. It derives it from the Business Declaration (hereinafter: the SvB) in appendix 1 to the planning rules, where a music school falls under that category, as well as from the registration in the trade register. Because the land is not intended for culture, sports and recreation, a music school is not allowed, according to [appellante]† Additional points [appellante] that it is not a matter of professional practice, as assumed by the court, but of a business enterprise. In this connection, it refers to the registration in the Trade Register, the website for “De Muziekflat” and the municipal guide for De Fryske Marren, edition 2020/2021.

Besides, [appellante] indicates that a music school is classified as category B in SvB and that these activities can only be performed if they are structurally separated from housing and other sensitive functions, which is not fulfilled in this case. By way of illustration, she refers to, inter alia, the judgment of 27. March 2013, ECLI: NL: RVS: 2013: BZ7485, under 5. Because SvB in its opinion has been declared valid in the general sense in Article 1.45 of the Planning Rules, the court has, according to her, erroneously passed.

Finally, companies in categories A, B and C in SvB fall according to [appellante] admittedly according to the planning rules § 6.1, letter c, but that does not mean that a music school is allowed on site. In the applicant’s view, the conditions of that provision are not satisfied, in particular because the activities are not limited to daytime activities.

4.1. The apartment has in the plan been assigned the destination “Center”. Pursuant to section 6.1 of the planning rules, services are permitted at the location of the apartment, among other things. Article 1.28 contains the following definition of services: “the provision of economic and social services to third parties, with the exception of a garage and a sex business.”

4.2. The Court of First Instance was right to find that the activities may be described as “services” within the meaning of Article 1.28 of the Rules of Procedure. For this purpose, the department assesses the following.

As the department has previously considered, including in the judgment of 9. September 2015, ECLI: NL: RVS: 2015: 2833, under 3.1, a planning rule must be interpreted literally for reasons of legal certainty. As it further follows from i.a. the decision of 2. December 2009, ECLI: NL: RVS: 2009: BK5072, under 2.3.1, that if the planning rules are clear, no explanation of the planning legislator’s intention is allowed. . The department assesses that the text in section 1.28 of the planning rules is decisive for answering the question of what is to be understood by service. It follows from this text that it relates to economic and social services for third parties. It does not state that it must be an office function or a comparable application, as mentioned as an example in the plan statement. Nor does it appear from the text of Article 1.28 of the Planning Rules that there must be no professional or commercial character. Because the text itself is sufficiently clear, no meaning is attached to what is stated about this plan rule in the plan explanation.

That the music school in SvB falls under the category “culture, sports and recreation” and this would also follow from the registration in the trade register, such as. [appellante] does not lead to a different conclusion. These circumstances do not change the fact that what was also considered by the court to provide music instruction in playing the piano and guitar qualifies as a service in the sense in which the term is used in § 1.28 of the plan. as far as [appellante] believes that the content of SvB is meaningful for answering the question of whether the activities are permitted, the Division does not follow this either. The fact that the definition of “Business Declaration” in Article 1.45 of the Planning Rules in the general sense indicates that this is part of the rules does not lead to that view. As has been considered above, services are permitted locally on the basis of section 1.6, introductory wording of the planning rules and under b, and the text of section 1.28 of the planning rules is decisive for what is meant by this. Neither in pkt. 6.1, preamble and under b, or in pkt. 1.28 in the planning rules, a link has been made to SvB, so that its content is not processed.

Finally, because the activities qualify as services, the division does not get around [appellante] on Article 6.1 (c) of the Planning Rules.

The argument fails.

5. [appellante] further argues that the court failed to recognize that a house may not be used for other functions at the same time. According to her, the court erred in finding that it does not follow from the text or the system of the plan that the house may not also be used for business purposes. In addition to the fact that there is no professional practice, it follows from the statement to the plan and from the Council decision that certain destinations may only be exchanged. She further points out that it follows from the definition of the concept of housing, as laid down in Article 1.49 of the Planning Rules, that it is intended solely for the residence of a separate household and therefore not also for another function.

5.1. As the department has taken a position on above under 4.2, the activities that take place in the apartment qualify services as mentioned in section 1.28 of the planning rules.

The department sees what [appellante] does not give rise to the view that, on the basis of the plan, the apartment may only be used for one of the functions mentioned in Article 6.1. This does not follow from the text of Article 6.1 of the Planning Rules. The planning rule therefore does not prevent the apartment from being used for both the “(open) housing” and the “services” function. Furthermore, because the text is sufficiently clear in itself, no meaning is attached [appellante] the intention of the planning legislature only to allow exchanges between the specific functions. Nor does the fact that dwellings are to be understood as “a complex of spaces intended exclusively for the residence of a separate household” on the basis of section 1.49 of the Planning Rules also lead to a different conclusion. It does not follow that other functions referred to in Article 6.1 are excluded within the “Center” destination when the building is inhabited. The court rightly did not reach a different conclusion. Since there was no infringement, the Board had no enforcement powers, which the court also rightly found.

The argument fails.

Conclusion

6. The complaint is unfounded. The judgment under appeal must be upheld.

7. The board shall not reimburse legal costs.

Decision

The Government’s administrative jurisdiction department:

confirms the contested statement.

Adopted by MEP PHA Knol in the presence of the Registrar Mr J. Buskermolen.

The member of the single chamber is prevented from signing the decision

The Registrar is prevented from signing the judgment

Spoken publicly on June 8, 2022

896

APPENDIX

Area plan “Lemmer Centrum”

Article 1.11

company

a company with an emphasis on the manufacture, processing, installation, collection and trade of goods, where any retail trade takes place exclusively as an accessory part of the company in the form of sale or delivery of locally produced, processed or repaired goods or goods directly related to the acts performed; .

Article 1.28

service

provision of economic and social services to third parties, with the exception of a garage and a sex business.

Article 1.45

Business condition

the business statement that is part of these rules as Appendix 1.

Article 1.49

home

a complex of rooms intended solely for the accommodation of a separate household.

Article 6.1

The grounds designated as ‘Center’ are intended for:

[…]

b. services;

c. companies in categories A, B and C of the Business Declaration (Annex 1), provided that:

1. these are small, most traditional activities;

2. Production and / or loading and unloading activities take place only during the day;

3. the activities (including storage) take place mainly indoors;

[…]†

f. (upstairs) housing;

[…]†

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