Abstract
The research focuses on the relation between municipalities, provinces and the Crown in Dutch spatial planning law. Specifically, it concerns the power of the provinces and the Crown to issue general ‘instructional rules’ (instructieregels) concerning the content of municipal zoning plans and other planning decisions. This power, which can be
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found in Articles 4.1 and 4.3 of the Dutch Spatial Planning Act, is a new instrument in Dutch spatial planning and is of paramount importance for the possibility of municipalities to make autonomous decisions concerning the regulation of land-use. The research addresses the legal questions surrounding the use of this new instrument. Not only are the answers to these questions important to the actual practice of the use of the instrument, but also for the legislative bill proposing the new Environmental Law Act (Omgevingswet), currently pending in the House of Representatives (Tweede Kamer), in which instructional rules play an important part. Instructional rules serve to set a framework aimed at policy impact. When setting spatial planning standards, lower-level administrative bodies only have discretionary powers (beslissingsvrijheid) within the provincial and national limits determined for the substance of the decision-making process, inter alia by instructional rules. This framework is set in order to ensure that the spatial-planning decisions taken at lower government levels comply with the policy as pursued by the regulatory government with respect to this setting of standards. Instructional rules have two legal effects. The first and main legal effect is that they must be taken into account by lower-level government authorities in their decision-making processes regarding spatial planning. The second legal effect is that instructional rules, based on the second paragraph of Article 4.1 and of Article 4.3 of SPA, respectively, may create the obligation for the municipal council to adopt a new land-use plan within a specified period. The SPA stipulates that an instructional rule can only be issued if this rule is necessary to protect a provincial or national interest with a view to good spatial planning. A higher-level government authority has an interest in options for spatial developments if these options influence the implementation of its policy. The instructional rule must be applied by a lower-level administrative body intending to take a spatial-planning decision. The rule includes directions on how this body should use one of its powers as based on the SPA. The limits of this power therefore also determine what obligations can be laid down in an instructional rule. The SPA has a specific instrument for the enforcement of instructional rules: the reactive instruction competence (reactieve aanwijzingsbevoegdheid). If a spatial-planning decision is the subject of a reactive instruction, the result is that the decision will not come into effect. This prevents that possibilities for use are created that are contrary to an instructional rule. The courts may be confronted by instructional rules in two ways. In the first place, the court can be requested to review whether a certain spatial-planning decision complies with an instructional rule. In the second place, the court can be asked to answer the question of whether a certain instructional rule is binding.
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