With all the objections lodged by local residents against various building plans, it's not often that – after unsuccessful objections to the zoning plan (amendment) and environmental permit (building permit) – a private law route is also pursued. And even if it does happen, it's also not often that it leads to a building ban in summary proceedings.
A different story unfolded with a construction plan for a retail and residential complex in Hilversum. It involved over 700 square meters of gross floor area for retail on the ground floor, with three stories containing 45 apartments above. Part of the plan was a 13-meter-high blank wall that would extend from the front to the rear of the plot, just a few feet from an adjacent apartment building. Previously, there was a 3-meter-wide alleyway there, followed by a building with a roof that sloped backward from the bottom of the first floor.
Several apartment owners and the Homeowners' Association (VvE) of the adjacent apartment building objected to the building permit for the complex. However, the objection was declared unfounded by the municipal executive, and the residents' request was also rejected by the administrative court. The zoning plan permitted 100 percent development on the plot and a building height of 13 meters. Therefore, the building permit could not be denied. There was therefore no room to weigh the interests of local residents against those of the apartment building's developer.
The residents and the homeowners' association subsequently filed a civil lawsuit demanding a suspension of the work required to implement the environmental permit, on penalty of a fine. They argued that the developer, through the upright, 13-meter-high, blank wall, was causing them unlawful nuisance as referred to in Article 5:37 of the Dutch Civil Code. They pointed out, among other things, that this wall would reduce the amount of natural light entering the complex. The developer countered this by arguing that, while light and views would be reduced, this is not unusual in an urban environment, and that there had previously been no unobstructed view. They also pointed out that the residents had constructed the balconies and dormers a short distance from the property line, and that they had therefore taken the risk that light and views would be restricted if the building options offered by the zoning plan were used.
The interim relief judge considered that the interest in preventing unlawful nuisance caused by the use of building options permitted by a zoning plan is not an interest pursued by the statutory provisions of the zoning plan. In other words, when establishing the zoning plan, any private law nuisance caused by using the building options provided by the zoning plan is not taken into account.
Furthermore, the interim relief judge considered that the new construction, due to the loss of light and view, constituted a significant disruption to the enjoyment of their property, given its nature, severity, and duration. This was taken into account because the new construction was being constructed just a few feet from the apartment complex, meaning that light would be minimal throughout the day and the view would be completely destroyed.
