Case note: ECLI:NL:RVS:2023:1239

A developer cannot be forced to enter into an agreement with financial contribution; after all, there is freedom of contract in the Netherlands. However, the reluctant developer does take the risk that his request for planning cooperation will be refused. After all, in a similar way as under current law, under the (future) "Omgevingswet" ("Ow") (Environment and Planning Act) the competent authority can refuse cooperation if it substantiates that cooperation would not meet the criterion of a "balanced allocation of functions to locations", which appears in various provisions in the Ow, for example in Article 4.2. And as under current law, the competent authority may then still grant its cooperation if the breach of that "balanced allocation of functions to locations" is mitigated or compensated by a financial contribution. Of course, there must then be a basis in an "environmental and planning vision" (omgevingsvisie) or a programme, given the quoted Section 13.22 of the Ow. The text of the Ow does not prevent the Administrative Law Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) from continuing the "Oldebroek" approach, any more than, in my view, the legislative history.