Confirmation of the 2019 Spatial Development Plan
The 2019 Spatial Development Plan (‘Ruimtelijk Ontwikkelingsplan, ROP’), hereinafter: 2019 SDP, was confirmed on July 17th of 2019, following the filing of opinions thereon by residents and local entities in February and March of this year. 116 opinions (zienswijzen) and 7 requests (123 in total) were filed on the draft 2019 SDP.
The Spatial Development Ordinance 2006
The Spatial Development Ordinance (‘Landsverordening ruimtelijke ontwikkeling’), hereinafter: SDO, was introduced in 2006. The SDO regulates the spatial development on Aruba.
The 2019 SDP is based on the SDO. The first SDP was introduced in 2009 for the duration of 10 years. Now, 10 years later, the 2019 SDP has been confirmed for a subsequent period of 10 years until 2029.
The Spatial Development Plan with Regulations
The 2019 SDP sets out the intended spatial development policy into certain zones among others touristic zones, economic zones, urban zones, buffer zones (‘landelijk gebied’), ‘green’ areas and nature reserves (‘natuurgebied / natuur- en landgebied’).
The rules and regulations which bind the individuals and/or legal entities will be set forth in the Spatial Development Plan with Regulations (‘Ruimtelijk Ontwikkelingsplan met Voorschriften ROPV’), hereinafter: SDPR. The SDPR will contain the nitty gritty on the rules regarding the purpose, the layout and the manner in which the areas in the 2019 SDP may be constructed upon and/or used.
The SDPR will also entail the administrative procedure for filing an objection against a government decision made on the basis of the SDPR.
According to the Minister of Spatial Development Infrastructure and Environment, work was commenced on the SDPR directly following the finalization of the draft 2019 SDP. The SDPR would be ready for inspection in the second half of 2019.
Anticipatory policy
The SDPR will significantly restrict the right of the owner to build on his property provided the property is located in a green area or nature reserve. In anticipation of the SDPR and the restrictions contained therein, the Minister introduced anticipatory policy (‘Voorbereidingsbesluit’) as per December 21st of 2018, which places certain restrictions on the erection of a building, and or the performance of construction works in or on the property by requiring a planning permit (‘aanlegvergunning’).
Discussion of the filed opinions
More than halfof the filed opinions entail requests by owners of properties in nature reserves, green areas or buffer zones to amend the draft 2019 SDP in such a way as to designate the property as urban zone, economic zone or touristic zone wherein allotment and/or development and/or commercial exploitation of the property is allowed. Only a handful of the requests led to (minor) changes to the draft 2019 SDP.
Furthermore, excavation companies have pointed out the continued need for sand excavation. However, the Minister wishes to switch from excavation to import and strives to end all excavation activities as per January 1st, 2021. Excavation activities will no longer be permitted in nature reserves. For the duration of the transition period, excavation activities will be transferred to economic zones. Furthermore, a planning permit will be required in addition to a hindrance permit.
Compensation of damages
As mentioned above, many property owners have protested against the building restrictions due to the damages they stand to incur as a consequence thereof. This became apparent during the town hall meeting held at the Chamber of Commerce in March of this year.
The SDO grants the property owner the right to a monetary compensation for incurred damages (article 30 SDO). The damage would consist in value depreciation of the property (planschade). However, the administrative procedure is not available at the moment awaiting formal introduction of the SDPR.
In the absence of an administrative procedure, the owner may start a civil action and claim compensation for damages incurred due to a wrongful act by the government (Country Aruba). Even in case the actions by the government are deemed justified in relation to the conservation of Aruba’s nature, this would not relieve the government from the obligation to compensate the property owner for incurred damages (‘nadeelcompensatie’). In a recent decision, the Court of Appeal rejected the claim of the owners of a property designated as nature reserve for compensation of damages based on value depreciation of the property (ECLI:OGHACMB:2019:119). The owners were not able to substantiate their claim according to the Court.