Voorzienbaar toch onvoorspelbaar? En anderszins verzekerd toch onzeker?

The article by Mr G. Bosma analyses recent case law on planning damage (now referred to as compensation for lawful government action), focusing on the concepts of ‘foreseeability’ and ‘otherwise compensated’, with reference to the case Limburg Real Estate (LRE) v the Municipality of Kerkrade.

The Afdeling Bestuursrechtspraak van de Raad van State (the highest administrative court in The Netherlands) held that LRE is entitled to a new assessment of its claim. According to the Afdeling, the planning measure was not foreseeable: bare clear preparatory decisions, the age of the former zoning plan, and a draft zoning plan published online without formal public notice are insufficient to establish active risk acceptance. No distinction is made between professional and non-professional purchasers when applying the standard of the reasonably acting and informed buyer.

The argument that the damage was otherwise compensated by LRE’s subsequent sale of the property at a substantially higher price was also rejected. A higher resale price alone does not constitute sufficient evidence; objective data must demonstrate that the planning damage was actually reflected in the purchase price.

The ruling confirms that both ‘foreseeability’ and ‘otherwise compensated’ are applied strictly and restrictively. For legal practice, this underscores inter alia the need for concrete and transparent public decision-making, and for explicitly documenting in real estate transactions whether a purchase price is intended to cover planning-related damage.