In a ruling rendered on 16 November 2016, the Administrative Jurisdiction Division of the Council of State found that, even if a party has acted in good faith, the Municipal Executive must still take enforcement measures if it finds that building is taking place contrary to the local regulations.

That is not altered by an online check having been carried out in the National Digital Database for Environmental Permits [omgevingsloket] via the municipality’s website, prior to building, and that check having revealed that building can take place without a permit. According to the Administrative Jurisdiction Division, that is because what emerges from such an online check depends on how the details are filled in. The Division ruled that failure to verify the outcome with the Municipal Executive before starting building should remain for one’s own account. Yes indeed, correct output does depend on the input. But this is a missed opportunity. That’s because it had been made easy to check online whether a permit was required for an activity, but now that check will always need to be followed by an official procedure involving a decision by the Municipal Executive that confirms the outcome of the check.

Otherwise, building will always take place for the account and risk of the party concerned. That party will then need to ask whether the Municipal Executive agrees with the conclusion that no environmental permit is required for the building activity. If the Municipal Executive does agree, then no permit will be required. Interested parties can then submit an objection to this. The question is of course how they will become aware of it. According to established case law of the Administrative Jurisdiction Division, if an interested party, not being the applicant, exceeds the deadline in cases when that party has not been informed of the decision and there has been no publication in a free local newspaper or in some other manner normal in the municipality, then (pursuant to Section 6:11 of the General Administrative Law Act [Awb]) exceeding the deadline is excusable, provided that the party concerned has made his/her objections known within, in principle, two weeks after he/she has become aware of the existence of the decision. Such party will then need to argue that the activity concerned does require a permit. If the Municipal Executive finds that a permit is in fact required, then it would be a good thing for the applicant to be able to submit an objection. The relevant case law concerns the phenomenon of “administrative law rulings” [bestuurlijke rechtsoordelen], against which an objection or appeal it is only permissible in exceptional cases.

That fact that an administrative authority records its views on the consequences of legal rules in a particular situation does not in itself have any legal effect and therefore does not constitute a legal act. That is why an “administrative law ruling” is not normally a decision within the meaning of Section 1:3 of the General Administrative Law Act. In exceptional situations, however, an administrative law ruling must be regarded as a decision despite the lack of any legal effect. That requires, in any case, that it be disproportionately onerous for those concerned to submit the dispute regarding the interpretation of the legal rules to the administrative court by means of appeal proceedings on an actual decision, in particular regarding enforcement or the issuing of a permit. Another approach is therefore to apply for the permit but to request that one’s application be declared inadmissible because the permit is not in fact required and because the activity is one for which no permit is necessary. If the permit is nevertheless issued, one can object to it with the argument that it was not required. Only then will there be certainty as to whether the permit procedure needs to be followed in order for the building plan to be implemented.

You can read the ruling of 16 November 2016 here (available in Dutch).