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The owners of the flats in The Gustav have opposed the adaptations to the building by a majority vote. These adaptations are necessary in order to enable McDonald’s to operate the restaurant. Gingko Biloba, the owner of the commercial space, is calling on the court to quash the decision made by the Homeowners’ Association in its vote. In court, Gingko Biloba’s lawyers argued that the residents were aware that there would be a catering facility because that is already laid down in the zoning plan approved in 2012. Based on that zoning plan, the Zuid city district granted McDonald’s the operating licence in January 2021.

The commercial space under the building
Marcel Steinbach

Unlettable

The lawyer also claimed that adaptations will be required to the building for any catering facility and therefore not only for a branch of McDonald’s. Gingko Biloba’s lawyer believes that the residents’ stance is unreasonable because it essentially makes the commercial space unlettable. The lawyer also submitted details of an independent investigation showing that the equipment that needs to be installed on the roof falls within the applicable standards.

No discussion

In response, the residents’ lawyer argued that it is actually the owner of the ground floor and McDonald’s who are being unreasonable. The residents voted against the technical adaptations to the building because there are still too many questions, concerns and uncertainties. In their view, the owner and McDonald’s only have themselves to blame for this. They say that there has never been any proper discussion, no response has been provided to their questions and their concerns have therefore not been dispelled. The owners also dispute McDonald’s right to use both commercial areas on the ground floor. One is intended for the restaurant, the other for storage. According to the residents, this is at odds with the agreements in the deed of division.

The commercial space, this time on the right
Marcel Steinbach

Counter-investigation

During the court case, the residents’ lawyer also objected to the independent investigation, claiming that the results were submitted so late in the procedure that it was no longer possible for the residents to launch a counter-investigation. Additionally, the lawyer argued that the investigation failed to take all of the circumstances into account. She stated that her clients do not oppose the opening of McDonald’s or another catering outlet per se, but that the lack of any proper consultation has left them with no confidence that McDonald’s has any concern for their residential comfort. Or, in the words of one resident: ‘We feel that we have been totally disregarded and there has been no cooperation whatsoever.’

No reconciliation

After the closing speeches by both lawyers, the judge asked Gingko Biloba if it had any sympathy for the residents. The lawyer said that she regretted the whole case, but continued to maintain that the owner is in the right because the zoning plan and deed of division permit a fast-food restaurant and the licence for it has been granted. This means that any chance of reconciliation would appear highly unlikely. If the parties are unable to reach agreement, the court will issue a decision. It is not yet known when exactly that will happen. Even that decision will not automatically mean that there is a ‘winner’. The case can still be taken to appeal.

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