Change in case law line: less likely to find urgency in preliminary injunction zoning cases

In zoning proceedings, it is sometimes necessary to file a request for injunctive relief with the preliminary injunction court, for example, if a zoning ordinance is published for the construction of a new apartment complex right behind your home or business. You file an appeal against the zoning plan. However, an appeal has no suspensive effect, so you fear that construction will already begin during the appeal procedure. You can then request a preliminary injunction from the preliminary injunction court to prevent construction during the appeal procedure. To obtain a preliminary injunction, there must be an urgent interest.

In a ruling on November 12, 2024, the preliminary injunction judge of the Council of State ruled that from now on it will be less likely to be ruled that there is an urgent interest when no permit application has yet been submitted. This case involved an application for injunctive relief in a zoning case.  The applicant feared that an application for an environmental permit would be filed and decided on during the appeal process, resulting in irreversible consequences. The preliminary injunction judge denied the request, alleging no urgency. 

Indeed, at the time of the hearing no permit application had yet been submitted, nor had it become apparent that the building possibilities in the zoning plan gave cause to carry out preparatory work that would actually have irreversible consequences, or at least that could not be carried out without the zoning plan. 

The preliminary relief judge then ruled that the mere statement that there is an intention to submit a permit application is insufficient to assume urgency in a request for suspension of a zoning plan. After all, in practice it appears that only in exceptional cases is a permit application actually submitted in anticipation of the irrevocability of a zoning plan. 

In practice, this means that in zoning plan cases it becomes more difficult to obtain a preliminary injunction. This seems to be possible only when a permit application has already been filed for a (building) activity. 

Do you have questions about applying for preliminary injunctions or about zoning proceedings? If so, please contact Gerard van der Wende or Fleur Huisman. 

You can find the link to the ruling here.