1. parliament
2. council of ministers
3. the spatial planning agency

1. the instruments

1. national spatial planning policy
2. national structure plan for policy sector
3. national spatial planning key decisions

1. provincial ……………………………………………………..p.6

1. provincial council and provincial executive
2. provincial spatial planning commission

1. the instruments

1. regional plan

1. the municipal council and executive

1. the instruments

1. the structure plan
2. the local land-use plan
3. preliminary decree
4. building permit
5. active land policy
6. compulsory purchases
7. pre-emption rights
8. recouping servicing and infrastructure costs
9. public private partnership

from:

APA journal, spring 1994 

Planning Systems in the Netherlands

Decisions in the field of spatial planning in the Netherlands are taken by the major institutions with executive powers at each of the three levels of government:

This administrative decision-making process is supported by a number of official bodies that exist specifically for spatial planning:

- at the national level these are the National Spatial Planning Commission , the National Spatial Planning Agency and the Advisory Council for Spatial Planning;

- at the provincial level these are the Provincial Spatial Planning Commission and the Provincial Spatial Planning Agency ; and,

- at the local level the Municipal Spatial Planning Department .

To achieve spatial planning objectives, the Spatial Planning Act provides the official bodies involved with a large number of specific spatial planning instruments. Roughly speaking, these instruments can be divided into two categories:

Those in the first category, plans and policy documents, enable the administrative bodies at the three levels of government to carry out spatial planning in a form that is both tangible and open to discussion. -

At the national level, these instruments are the national spatial planning policy document ( and the national structure plan for a specific policy sector; at the provincial level the regional spatial plan; and at the local level the structure plan and local land use plan .

The instruments in the second category allow spatial planning policy to be formulated at a particular government level and laid down in plans or policy documents to be implemented at the various other levels. At the national level, this category includes directives; at the provincial level regulations and directives, approval of local land use plans; and, at the municipal level, building and construction permits and exemptions.

1. National level

(First and Second Chambers)

The Dutch Parliament, comprising both First and Second Chambers, plays a prominent role in the drafting of spatial planning legislation. As a rule, the initiative for drafting legislation comes from the government, which submits bills to the two Chambers. The Second Chamber has the power to alter the content of bills by introducing amendments; the First Chamber cannot amend a bill, but only accept or reject it. The Second Chamber can also initiate a bill.

Parliament is also responsible for monitoring government policy, which takes place in conjunction with the annual round of budgets. As part of this task, the Minister of Housing, Spatial Planning and the Environment is required to include with the budget submitted to the Second Chamber, an explanatory report on national spatial planning policy.

At the national level, the Minister of Housing, Spatial Planning and the Environment is responsible for the formulation of government policy on spatial planning. Co-ordination of that policy takes place in the Council of Ministers.

lnterministerial preparation of spatial planning policy takes place in the National Spatial Planning Commission, one of the official anterooms' to the Council of Ministers. One or more members represent every Ministry on the National Spatial Planning Commission. The respective Ministers delegate their most senior civil servants to attend. One or more experts from outside the civil service may also attend the commission. lt has an independent chairman, and the Director-General of Spatial Planning is in addition to being a member also the secretary of the commission.

Official interministerial consultations on spatial planning take place in the National Spatial Planning Commission.

The commission's task is to advise the Minister of Housing, Spatial Planning and the Environment and, if required other Ministers.

The significance of the National Spatial Planning Commission is apparent in the provision of Section 3 of the Spatial Planning Act, in which is stated: "the National Spatial Planning Commission is to inform Ministers responsible of the formulation of measures and plans that may affect government policy on spatial planning of all such measures and plans in advance". This is why, at the national level, the National Spatial Planning Commission is the most important co-ordinating body in the field of spatial policy.

The National Spatial Planning Agency is an official organisation under the responsibility of the Minister of Housing, Spatial Pinning and the Environment. lts task is to assist the Minister in formulating national spatial planning policy, conducting research and giving advice on spatial planning matters and monitoring compliance with the Spatial Planning Act. lt is also responsible for preparing the recommendations of the National Spatial Planning Commission. The National Spatial Planning Agency is, therefore, both a policy service and a planning agency.

At the national level, the Minister of Housing, Spatial Planning and the Environment is responsible for formulating government policy on spatial planning. The main instruments for this policy are national policy documents on spatial planning, which contain the main points and principles of national spatial planning policy for the medium and long term. In addition to the more generally oriented policy documents, government policy on spatial planning can also be laid down in national structure plans for certain policy sectors.

A national spatial planning policy document (nota over de ruimtelijke ordening) sets out the main principles and guidelines for national spatial planning policy for the medium and long term. The first national spatial planning statement was published in 1960. Others followed in 1966 and in the 1970's. The current policy document, the fourth, was first published in 1988 and finally approved by parliament in 1993. It sets out the guidelines of national spatial planning policy for the period up until 2015. The National Spatial Planning Agency draws up national spatial planning policy documents.

A national structure plan for a policy sector (structuurschema) also contains guidelines and principles important to national spatial planning policy, but in this case with respect to a specific sector of government policy. It contains policy guidelines of the spatial aspects of that particular sector in the medium and long term. One or more explanatory maps accompany this type of plan. It is primarily an instrument for sector planning, but its content also means that it facilitates optimal co-ordination between sector planning and spatial planning. The position of this type of plan is at the interface of sector and spatial planning. Examples are national structure plans for Traffic and Transport and for Rural Areas.

A national structure plan is drawn up by the appropriate Ministry, in the case of these two examples the Ministry of Transport, Public Works and Water Management and the Ministry of Agriculture, Nature Management and Fisheries respectively.

Both the national spatial planning policy document and the national structure plan for a policy sector follow a set procedure, namely that of the national spatial planning key decision.

In accordance with this procedure, following the go-ahead from the Council of Ministers, central government publishes policy proposals will be given extensive publicity. They will be put on public display and reactions are invited from the general public. Anyone has the opportunity to participate in this process. The policy proposals are also submitted to the First and Second Chambers of the Dutch parliament. At the same time, the Ministers responsible consult with the lower tiers of government, usually the provincial authorities concerned, the water boards, and, whenever possible, the municipal authorities (if a large number of municipal authorities is involved, consultations conducted with their umbrella organisation, the Association of Dutch Municipalities). The Advisory Council for Spatial Planning land other advisory bodies, (if necessary) is requested to make recommendations. The Second Chamber of Parliament can also make its initial reaction known at this stage by means of written questions. The results of this public participation and all these consultations are published as part 2 of the procedure.

On the basis of the participation and consultation and the advice recommended, the government reconsiders its proposals and then makes a decision, in which it indicates which changes have and have not been adopted, and why. At this stage the National Spatial Planning Commission, which has been involved from the start of the process, passes its judgement on the revised proposals. This government decision is then submitted to the Second Chamber for approval (part 3).

After a debate in the Second Chamber about both parts 2 and 3, and provided it is approved by the Second Chamber, the decision is put before the First Chamber for approval. The First Chamber is only empowered to approve or reject the decision in its entirety. Once this procedure has been completed, the approved text forms the basis for the policy the government intends to pursue in that particular field (part 4).

The national spatial planning key decision procedure is used by the national government both:

The spatial planning key decision procedure is used only for major projects and policy issues.

If the national government wants to change or influence the ways in which provinces or municipalities are conducting their spatial planning, it uses the method of consultation (e.g. through the Provincial Spatial Planning Commissions) or amendments to or general administrative orders under the auspices of the Spatial Planning Act.

Other parts of the Spatial Planning Act give the national government the responsibility of supervising the spatial planning policy of the provinces and municipalities. The legislation requires that this supervision must be based on the spatial planning policy of the national government. This policy may be laid down in a national spatial planning key decision, but the legislation does not require it.

2. Provincial level

At the provincial level, the Provincial Council is responsible for determining future spatial planning policy in its province. It does so by drawing up regional plans and adopting various policy documents relevant to spatial planning. The Provincial Executive who is also responsible for implementing the decisions of the Council prepares these regional plans and policy documents. The two bodies collaborate to formulate the main guidelines of provincial spatial planning policy, and the Provincial Executive is responsible for implementation and further development.

The Executive is required to keep regional plans and policy documents within the framework laid down by the Council.

Instruments for implementation, as set down in the Spatial Planning Act, include acceptance or rejection of the local land use plans, and the obligation of a Municipal Council to draw up or review a local land use plan or comment on the content of a particular local land use plan.

Each of the 12 provinces has its own Provincial Spatial Planning Commission responsible for discussing spatial planning issues and advising the provincial government on the implementation of the task required of that level of government under the Spatial Planning Act. The Provincial Council is obliged to consult the Provincial Spatial Planning Commission in advance about all measures and plans that affect spatial planning in the province.

The most important instrument available to the provincial authority for presenting its spatial planning policy is the regional plan, which outlines the main aspects of future spatial development for the whole province or a part of it.

A regional plan comprises:

> a description of the main points of the chosen direction of development and, where necessary, of the phases in which that development can or should be completed;

> one or more explanatory maps illustrating these main points wherever possible; and is accompanied by;

> an explanation, setting out the ideas and results of relevant research and consultations that forms the basis of the plan.

A regional spatial plan is in principle indicative rather than binding. lt does, however, have some binding force upon the province that drew it up; the limits within which the province may depart from the regional plan have to be specified within that plan. The Provincial Executive cannot depart from decisions that have been characterised as 'essential'. lf this is desired, then the regional spatial plan must be revised.

The definitive regional spatial plan will form the basis of the policy to be approved by the Provincial Executive on municipal local land use plans and any instructions it may issue. The Provincial Executive may not approve a local land use plan, which is not in accordance with 'essential' decisions in the regional spatial plan. If the Provincial Executive issues a directive as to what a municipality should include in its local land use plan or issues an order that such a plan be drawn up or revised, this directive must be based on the relevant regional spatial plan.

The preparation of a regional plan is the responsibility of the Provincial Council. This consults the Provincial Spatial Planning Commission, neighbouring provincial authorities, the municipalities, the water boards and the relevant Ministries and, in border regions, the authorities across the national frontier. After the draft plan has been made available for public inspection, anyone is free to lodge an objection. The Provincial Council then adopts the plan, with or without modifications. The final plan must be 'reported' to the Minister of Housing, Spatial Planning and the Environment. In practice, the Minister usually consults the National Spatial Planning Commission for advice on the regional spatial plan, whereupon this national commission assesses it in the light of national spatial planning policy. If the plan does not comply with national spatial planning policy, the advice given by the National Spatial Planning Commission may cause the Minister to instruct the provincial government accordingly.

The drawing up of regional spatial plans by the Province is not obligatory. The Minister of Housing, Spatial Planning and the Environment can, however, compel a provincial government to adopt or modify a regional spatial plan, and instruct it as to its content. A regional spatial plan must be reviewed at least once every ten years. However, if this does not happen, the current regional spatial plan does not lose its validity.

3. Municipalities

Like its provincial counterpart, the Municipal Council, the elected body within the municipality, also determines local spatial planning policy by drawing up local plans and adopting various policy documents relevant to spatial planning. The Municipal Executive is responsible for implementing these plans.

Local government, unlike that at the national and provincial levels, does not always have a consultative body to prepare administrative co-ordination. Like the provinces, most municipal councils do, however, have a committee that also advises and assists them on matters pertaining to spatial planning. These committees are open to non-councillors. At the municipal level, preparatory official consultations, both horizontal and vertical, have not been institutionalised.

The larger municipalities have their own spatial planning department. Most small municipalities employ private constants to carry out their spatial planning work (conduct research, give advice, draw up plans).

3.2. The lnstruments

There are two types of plans at the municipal or local level, which the authorities can utilise to present their spatial planning policy: the structure plan and the local land use plan.

In a structure plan, the Municipal Council designates in broad outline the future development of the entire municipality or a part of it. Neighbouring municipalities may combine to draw up a joint structure plan for their area.

A structure plan comprises:

> a description of the main points of the most favourable development of the area and, where necessary, of the phases in which that development can or should be completed, as well as the relationship to the surrounding area;

> one or more explanatory maps illustrating these main points wherever possible;

and is accompanied by:

> an explanation, setting out the ideas and results of relevant research, consultations and participation procedures that forms the basis of the plan.

The drawing up of a structure plan is not compulsory and the Provincial Executive cannot compel municipalities to do so. Structure plans must be reviewed at least once every ten years.

The procedure for the structure plan is: the Municipal Executive prepares the plan, and after the draft plan has been made available for public inspection, anyone is free to lodge an objection. Consultations take place 'where necessary' with public bodies. The Municipal Council then adopts the plan, with or without modifications. The final plan must be 'reported' to the Provincial Executive and to the regional inspector of the National Spatial Planning Agency.

With the exception of the difference in scale, a structure plan is, therefore, very similar to a regional spatial plan. It outlines the chosen future developments, is descriptive and general, has significance as a guideline for the municipality's policy and has some legal consequences for certain actions of the municipality: - if a local land use plan is being drawn up for a built-up area and there is a valid structure plan for that area, then the 'preliminary decree' by which decisions about building permits are arrived at may be prolonged for one year; - if the structure plan indicates that certain areas are designated for urban renewal, then the Municipal Council can decide that pre-emption rights are applicable-, - a province may, but is not obliged to, refer to the municipality's structure plan when that municipality submits a local land use plan for approval;

if a municipality wants to use a special procedure (called an 'article 19 procedure') to depart from its local land use plan it must first obtain approval from the province: this may take the availability and content of a structure plan covering the area concerned into account;

A local land use plan is of a completely different nature and significance. lt is the only plan referred to in the Spatial Planning Act that is directly binding on the citizen and government bodies, making it far more consequential than the types of plans discussed so far. Almost every spatial planning decision at the municipal level is linked to the local land use plan in one way or another. The local land use plan is, therefore, undoubtedly the most important spatial planning instrument at the local level.

The Municipal Council is obligated to draw up a local land use plan for that part of the municipality outside the built-up area; a plan for the built-up area itself is not compulsory.

The plan is legally binding and serves as one of the grounds upon which the municipality decides whether or not to issue a building permit. As such, all those actors (public or private) refer to it who wish to undertake construction or development activities.

The local land use plan also provides the legal basis:

- for a construction permit: this permit regulates the undertaking of certain construction works, which do not fall under the definition of 'building works'; they can include such aspects as road construction, digging drainage channels, using pesticides and changing ground levels;

- for obliging private developers to contribute to the costs of providing certain public services;

- for claiming compensation for loss of value;

- for compulsory purchase.

Besides these legal functions, the local land use plan has the formal function of giving legal certainty (or at least, clarity and a high degree of certainty) to citizens (landowners) and private developers with respect to the spatial development at a certain area. lt has in addition an informal function in the communication between the municipality and other public bodies. For example, the national government can make it a condition of granting the municipality a subsidy for a certain development (such as building subsidised housing) that there be a valid local land use plan for the area concerned. This indispensability in the daily practice of the municipality is reflected in the trouble to which a municipality will go to draw up a local land use plan even for a very small area.

This indispensability can be seen in another way too. Although it is not obligatory to draw up a local land use plan for the built-up area, in practice most municipalities have taken the trouble to cover most of their built-up area with these plans. Where, however, this is not so and there is no valid local land use plan, applications for a building permit cannot be tested for compliance with a spate plan. So the availability of a valid local land use plan makes it easier to control the spatial development in built-up areas and to refuse undesirable developments. insofar as it is necessary for effective spatial planning, a local land use plan outlines the designation of the land covered by it and, if required as part of the designation, issues regulations for the use of land and buildings within the plan area. A local land use plan must be reviewed at least once every ten years. However, even if it is not revised after ten years, it does not lose its legal validity.

A local land use plan has to comprise (at least):

> a description of the designated land uses contained in the plan, including an indication of the goal(s) for each designation, to ensure effective spatial planning of the land it comprises. lf necessary, it should also include a general description of the way in which the plan is expected to achieve its goal(s);

• one or more maps, showing the designation of the land within the plan area (at a scale of at least

1: 1 0.000);

A local land use plan is also accompanied by:

>an explanation, setting out the ideas that forms the basis of the plan and results of relevant research, consultation and participation procedures.

> a financial calculation and balance report .

A local land use plan may be drawn up in detail

or in general terms.

The procedures for drawing up, adopting and approving a local land use plan are stringent and demanding, because of the legal force of an approved plan. There are in addition binding procedures for elaborating a plan, for modifying it, for allowing exemptions, for issuing directives, etc.

It is important to know that the procedures allow the municipality to determine the content of its own local land use plan. lt is only after the plan has been drawn up and adopted by the Municipal Council that the higher tier authorities can influence it (that is, try to change it): for instance, the Provincial Executive can withhold approval.

The higher tier authorities have additional powers to oblige the municipality to amend its local land use plan to comply with national or provincial spatial planning policy. If there is a project of national or regional importance the Provincial Executive or the Minister may intervene directly in the municipal plan making. They may oblige the municipality to grant exemption to the local land use plan and to grant the necessary permits (e.g. the building permit). This new power will be used to speed up the provision of waste disposal sites, centres for asylum seekers etc. It is intended to minimise so-called NIMBYism.

In spite of the greater possibilities introduced in 1985 to draw up more generalised local land use plans, municipalities continue the practice of making most of their local land use plans detailed. The reasons for this are: the desire of citizens to obtain greater legal certainty and intensive public participation leading to matters being regulated in detail. Moreover it can also be attractive for the Municipal Council to control spatial development by means of a strict and detailed local land use plan.

Because the local land use plan is legally binding, it can be inflexible. To provide the flexibility which any planning system must have, there are provisions for revision, exemption and elaboration.

One of the provisions is the 'article 19 procedure', whereby a municipality can grant exemption if, for the area in question, a preliminary decree is in force or a draft plan has been put on display. This gives the possibility of giving approval in anticipation of a new plan, with which the proposed development would in any case be in accordance.

The main permit for directly controlling changes to the spatial environment is the building permit, which falls under the Housing Act, not the Spatial Planning Act. When the application is for development on land not covered by a local land use plan, then the building permit has the character of a broadly based technical permit (safety, health, utility of the proposed building works). When the application concerns land, which is covered by a local land use plan, then the provisions in those plans must be applied. The building permit has then the character of a combination of a technical permit and a planning permission.

Note that there is no separate planning permission. Where the application is for a location not covered by a local land use plan, then the 'planning test' cannot be carried out. However, the test with regard to the building regulations includes some aspects that in other countries would be considered planning aspects, such as visual appearance, and change of use from the residential function.

If the application is in accordance with the provisions of the local land use plan, the permission may not be refused. If it is contrary to those provisions it can not be issued.

The municipality will often initiate and stimulate the implementation of a development project or plan by an 'active land policy'. This means acquiring and servicing the necessary land, and offering it for development. To do this, the municipality utilises several types of measure, such as land development and provision of local infrastructure

Spatial planning policy can be much more positively and precisely implemented by using an active land policy than by passively issuing or withholding permits. For example, if the municipality acquires land on which development is to take place, it can provide local infrastructure, decide which parts of the land are to be built upon, and divide this land into plots. In that way, it can determine directly the layout of an area. When it comes to disposing of those plots, it can decide to which developer the land will be sold or leased. And it can dispose of the land under conditions more detailed than possible under the building permits or planning law (e.g. it can specify that the housing must be for rent and not for sale, or that the construction must start, and be completed, on certain dates).

If the municipality requires land to implement a project, the owner might refuse to sell. In that case the municipality can take measures for compulsory purchase. This is regulated by the Compulsory Purchase Act.

There are several grounds for compulsory purchase, among them "in the interests of spatial planning and housing". Under this article, compulsory purchase may take place:

In practice, compulsory purchase is rarely used. The reason is that municipalities, when trying to buy land amicably, offer a price, which is based on the price the owner would receive under compulsory purchase. This price tends to be around twice the existing use value (additional compensation is paid for expenses, lost income etc.). The municipality often seeks an amicable solution to avoid long-term (7 years) legal procedures.

If a local land use plan has been put on display speculation can push up land prices. The right of pre-emption secures the right of the municipality to buy at pre-speculation prices. This is regulated by the Pre-emption Act. In a designated area, the landowner intending to sell must inform the municipality, which has two months in which to exercise its option. The price is the value on the open market, and is determined by negotiation or in the courts.

If a municipality has serviced land and provided infrastructure, as a result of which private interests in land or property have benefited, then the municipality will wish to recoup some or all of the costs. If it cannot do that, there is less likelihood that such construction works - which promote development - will be carried out.

The costs can be (partly) recouped by amicable agreement between municipality and the interested party in two ways.

One way is if the land is owned by the municipality which, after carrying out the public works, then disposes of the land to the developers: the costs can be (partly) recouped through the selling price.

The other is through the ordinance under article 42 of the Spatial Planning Act. This regulates the situation when a private owner of land within the area of local land use plan wishes to develop it, but the land must first be serviced. The municipality, which then recoups (some of the costs, can carry out the servicing by an agreement according to the ordinance If the property is not owned by the municipality or if the developer refuses to enter into an 'article 42 agreement', then the municipality can try to recoup some of the costs compulsorily, using the betterment levy. This instrument has hardly been used, because it is very cumbersome to apply.

Government bodies are free to enter into partnerships with private bodies in order to implement part or all of a project. The partnership may take form of an agreement under Civil Law (covenant) or a limited liability company. The only limitation is that the government body, when acting as a member of a partnership, may not transgress the rules regulating its conduct as a government body. For example, it is still the Municipal Council that must adopt the local land use plan, the Municipal Executive that must process the building permit, and these must still follow the legal procedures.

The objective of both the public body (usually a municipality) and the private body (e.g. a developer or an investor) for entering into a partnership is to be able to achieve more, or more quickly, or more cheaply, or with less risk than if each worked independently.

The partnership as a way of realising a development project must be seen as alternative to the usual division of labour, whereby the municipality draws up the plan, carries out the research, buys the land, provides the infrastructure and services, and then offers building plots to potential developers. When development takes place in that way, the municipality incurs very heavy costs for a long period, without any certainty that it will be able to dispose of the land or at what price. The potential developer and/or investor runs no risk: but on the other hand has no possibility of influencing the content of the project plan.

The alternative is that both parties agree to work together under agreed conditions: the agreement can cover the plan-making process, carrying out the research, buying land, etc. For the largest projects being carried out in this way, the partnership consists of the municipality, private interests and in addition the provincial and national government.