Rights and Responsibilities in Dutch Land-Use Planning Aimed at Flood Protection and Prevention of Waterlogging

Rights and Responsibilities in Dutch Land-Use Planning Aimed at Flood Protection and Prevention of Waterlogging

Jong, P.
Hobma, F.A.M.

Architecture

Real Estate and Housing

2012-02-07

1. Governments have a responsibility to prevent flooding and waterlogging (water nuisances). One of the instruments to achieve this, is using a legally binding planning instrument: the land-use plan. A first question that arises is: To what extent can water-related conditions of climate adaptive planning be laid down in land-use plans? This paper demonstrates that only ‘spatially relevant’ aspects of climate adaptive planning can be laid down in land-use plans. Recent case-law (notably Westergouwe) shows that it is legally allowed to build in a low laying area under certain conditions, notwithstanding some expected water risks related to possible waterlogging and flooding. One of the conditions is that there will be no unacceptable risk on flooding and waterlogging. Other conditions were that the floor level of the houses has to be minimal equal to the simulated flooding level, and the condition that enough water storage capacity has to be realised to prevent water problems in adjacent areas. 2. Flood protection is mostly regarded as the responsibility of the government. In the Netherlands private actors (civilians, businesses) also have a responsibility to prevent some waterlogging (e.g.: storm water on private grounds). The second question for this paper is: How is the division of responsibilities and liabilities between public and private actors regarding (the prevention of) flooding and waterlogging? Examples from Dutch (case) law concerning responsibilities and liabilities show that under certain conditions governments are not liable for damages to private actors stemming from flooding and waterlogging.

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6th International Conference of the International Academic Association on Planning, Law and Property Rights, School of the Built Environment, University of Ulster, Belfast, UK, 7-10 February 2012

Institutional Repository

conference paper

(c) 2012 Jong, P.
Hobma, F.A.M.