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McDonald’s The Gustav not yet totally ruled out

On 7 June 2022, the Nord-Holland administrative court nullified the environmental permit issued to McDonald’s. The fast food chain needs this permit in order to be able to do alteration work on the space in Gustav Mahlerlaan, underneath The Gustav housing complex. But this does not yet rule out the restaurant altogether. The judge issued a verbal decision on the case. As soon as it has been issued in writing, both the City of Amsterdam and Macdonald’s have six weeks in which they can appeal against it. Moreover, the nullification of the permit also depends on a separate procedure: the case that the owner of the commercial space (ground floor) at The Gustav brought in late 2020 against the residents of the building.

Commercial space owner appealing

In order to do rebuilding work on the space, permission is also needed from the Homeowners’ Association (Vereniging van Eigenaars, VvE) of The Gustav in addition to an environmental permit. In September 2020, the VvE refused to consent to the alterations to the building, causing commercial space owner Gingko Biloba to resort to legal action. At the time, the Amsterdam sub-district court found that the residents had been justified in not approving the structural adaptations deemed by the hamburger restaurant to be necessary. Partly on that basis, the administrative court ruled on 7 July that McDonald’s is not an interested party in the application for an environmental permit and revoked it. This is because MacDonald’s cannot put its construction plan into practice without permission from the VvE. The owner of the commercial space, Gingko Biloba, previously appealed the sub-district court ruling, with a view to enforcing the required permission for the alterations after all. A judgment on this appeal is expected in November of this year.

Commercial space at The Gustav

Second lawsuit against residents

In the meantime, the owner of the commercial space has initiated a second private legal procedure against The Gustav residents. According to property lawyer Kim Kroon, who is advising the residents in the first procedure, this case is similar to the first one. ‘If you do not get permission to renovate the building, you can resort to the court for so-called alternative authorisation. This is what Gingko Biloba is doing in both cases. In theory, it is possible to initiate a procedure of this kind after any VvE vote that you disagree with. Any judge will ultimately take into account other court cases that may still be pending. In this case, I can well imagine that a court would first want to wait until the appeal on the first case has been completed.’ It is not yet known when that hearing will be held.

Operating licence

Finally, there is another procedure still running relating to the operating licence that McDonald’s needs in order to start a hospitality business in the building. This was granted by the Zuid city district on behalf of the mayor, but over 80 objections to it were also received. In response, a hearing was held last year. The City of Amsterdam Legal Bureau now needs to issue advice to the mayor on whether or not the operating licence should be kept in place. This advice is still pending.

Reaction of McDonald’s and owner

In a response by email, McDonald’s and commercial space owner Gingko Biloba issued the following joint statement: ‘McDonald’s (the location tenant) and Gingko Biloba (the landlord) have both taken cognizance of the verbal decision issued by the administrative court. We are currently waiting for written confirmation of this decision. However, the reasoning of the administrative court will have no influence on the procedures in private law between Gingko Biloba and the VvE of The Gustav.’

Battle continues

The legal battle to establish a McDonald’s underneath The Gustav has now been going on for two years. Residents’ fears include concerns about noise and odour nuisance from the fast food chain, which announced plans for the branch in the summer of 2020. Residents also claim that they were not sufficiently informed about McDonald’s and Gingko Biloba’s plans.

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