From 1 July 2017, municipalities may impose a duty of care on dwelling users, which should prevent serious or repeated nuisance for neighbours.
The mayor may respond to a violation of the duty of care by imposing an administrative enforcement order.
The Dutch Domestic Nuisance Act (Wet aanpak woonoverlast) amends the Dutch Municipalities Act (Gemeentewet) and is an initiative of Ockje Tellegen, a member of the Dutch House of Representatives, resulting from the lack of suitable measures to deal with domestic nuisance. In the case of nuisance caused by barking dogs, loud music or indecent neighbours, there are basically two measures that can be currently taken by the mayor: (i) issuing a warning (without obligation) to the person causing the nuisance, or (ii) evicting or closing the dwelling of the person causing the nuisance. The first measure is without obligations and therefore does not often have the desired effect. The second is a very far-reaching measure that in some cases may compromise the complex situation being faced by the mayor. As a result, the application of the measure may intervene too deeply in the life of the person causing the nuisance.
The introduction of the above duty of care – which must first be embedded by the municipal council in a municipal bylaw – and the power of the mayor to impose an administrative enforcement order in the event of a violation, has been warmly received by the legislature and is in line with the general tendency of the government to introduce more duties of care in administrative law. In this connection, reference is made to the Dutch Environment and Planning Act (Omgevingswet), which is still to take effect. A duty of care always involves a certain amount of tension, because it may compromise the legal certainty and the enforceability thereof. What one person considers to be nuisance may be viewed differently by another. This will require a careful approach from public authorities to make the scope of the duty of care more explicit, if necessary, in the municipal bylaw and/or to clarify the application of the power by the municipality in policy.
Further to an amendment, the legislature has adjusted the law in such a way that nuisance resulting from renting out via, for instance, Airbnb, may be covered by the scope of the act. The duty of care rests on 'the person using a dwelling or a property belonging to the dwelling or who makes it available in return for payment to a person who is not registered as a resident with an address in the municipality in the persons database'. That dwelling user must ensure that 'no serious or repeated nuisance is caused for neighbours by behaviour in or from within that dwelling or that property or in the immediate vicinity of that dwelling or property'. Consequently, the intended amendment to the Municipalities Act seems to meet the challenges of contemporary society more effectively. The government wishes to act to be announced as soon as possible in the Bulletin Acts and Decrees and is providing for the coming into force of the act as of 1 July 2017.
However, despite that fact that the legislative proposal encountered little resistance in the debates in the Dutch House of Representatives and the Senate, the Council of State Advice Department was not entirely convinced of the benefit of and need for the act. It was said, for instance, that there is insufficient evidence for why current instruments would not suffice. The Advice Department has also questioned the use of public funds for conflicts between citizens and the required enforcement capacity. Furthermore, questions may be raised about how the collection of evidence must be handled in practice. This is a problem that is already being debated, as is clear from the advice requested from Leen Keus, Advocate General at the Dutch Supreme Court. The evidence issue is also relevant because of the restrictions imposed on the mayor in the Municipalities Act, as a result of which he or she is entitled to impose an enforcement order only if the serious or repeated nuisance cannot be dealt with in another suitable manner. However, if a careful and thorough approach is adopted, these objections due not appear to be insurmountable for public authorities. This will have to be demonstrated in practice.
In short, laying down a duty of care in a municipal bylaw demands a careful approach from public authorities, with attention having to be focused on the legal certainty and enforceability of the duty of care. It should not be forgotten that citizens themselves are not always able to formulate practicable and effective rules of behaviour, so that a debate may arise concerning the issue of whether an action or an omission results in a violation of the duty of care. There may also be a debate about what measures should or should not be taken to bring the nuisance-causing situation into line with law again. An effective and careful definition and use of the instrument can help to overcome such issues. We will be pleased to contribute.