Between the rule of law and the quest for control: Legal certainty in the Dutch planning system

At the heart of every planning system lies the trade-off between flexibility and legal certainty. Every system has a bit of both. Systems such as the English put more emphasis on flexibility, whereas the American and the French seem to value legal certainty more highly. The Netherlands is part of the same Napoleonic legal family as France. However, in the Netherlands, planning practice seems to be more flexible than the general perception of the Dutch planning system. Many developments deviate from the legally binding land-use plan. Therefore, such a plan does not provide much legal certainty. On 1 July 2008, the new Dutch Spatial Planning Act came into effect. One of its most important objectives is instating the land-use plan as the central decision framework. Both the steering and the safeguarding function – the legal certainty – are meant to be strengthened. Therefore, the frequently grant exemptions must be reduced. However, it seems that the ‘erosion’ of the land-use plan has a more fundamental origin in Dutch planning culture. Based on empirical evidence of the use of the previous planning system, this paper states that steering ambitions of Dutch municipalities, rather than the system as such, have caused land-use plans – with their main focus on recording spatial development afterwards – to become overly detailed and easily outdated. The quest for control and the rule of law seem to be antagonists; one can only exist at the expense of the other.