Stables in Brabant raise legal questions

On 8 July 2017, the Provincial Council of North Brabant adopted the 'Space Regulations 2014, update 2017'. The aim is to accelerate the sustainable transition of livestock farming. A lot has been published about this in recent days via blogs and otherwise. In this blog I limit myself to two changes that were made at the last minute. They relate to stables.

In East and Central Brabant it is only possible to develop new stables if stables disappear elsewhere. Six parking areas are distinguished. The stabling requirement is only set for penstock farms. According to the regulation, livestock farms are all livestock farms with the exception of dairy farming and sheep farming. The area of ​​the remediation must be at least 110% of the new area. In this way 10% is skimmed off. The parking rules work directly.

Waivers
A new transitional provision has been added in the final regulation. It concerns Article 42, third paragraph of the Regulation. This states that the parking rules do not apply to cases for which the Provincial Executive has granted an exemption. A condition for this exemption is that a stable elsewhere has been demolished. This exception only applies to the size that has actually been demolished.

Much smaller
The restriction 'up to the extent that has actually been demolished', however, is at odds with the jurisprudence of the Council of State. This shows that intensive livestock farmers who have an exemption should not be the victims of a new regulation. They will become so with this transitional provision, now that the surface area of ​​the old shed will generally be (much) smaller than the surface area of ​​the new shed.

Market and Government Act
In addition, the rule has been added to the draft regulation that proof that the parking rules have been complied with is issued by or on behalf of the Provincial Executive. Apparently this rule was added hastily to create a basis for new rules to be determined by the Provincial Executive. These new rules will, among other things, concern the interpretation of the 'stalding bank'.

As far as I know, it is still not clear which rules apply to the parking bench. This surprises me because this part of the regulation works directly. Besides surprise, it also raises many legal questions.

competition law
It is also important that a 'public interest decision' has been taken for this by the Provincial Council on the basis of Article 24h, sixth paragraph of the Competition Act. The consequence of this decision is that the provisions set out in the 'Market and Government Act'

included rules (such as the injunction to charge at least the costs thereof when offering products or services) do not apply to parking. An objection can be lodged against this and, if necessary, a provisional injunction can be requested. The scheme now puts brokers out of the game. 

Paul Bodden

Paul Bodden is a lawyer at Hekkelman. He focuses on providing legal aid. He also wrote a preliminary recommendation for the Association for Agrarian Law and is a member of the editorial board of the Tijdschrift voor Agrarisch Recht.

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