In its decision of 2 August 2017, ECLI:NL:RVS:2017:2083, the Division held, in short, that even if it were possible to revoke part of a building permit, the revocation authority exercised need not be limited to what is strictly necessary. The Division found that there were no grounds for holding that the municipal executive should have split up the construction plan ex officio and revoked the environmental permit only to the extent the construction plan could not be executed. The Division also found that the District Court was correct in holding that the municipal executive was entitled to consider the proposed expansion as an independent whole.
It is possible to revoke part of an environmental permit if the part of the construction plan for which the permit will not be revoked can be viewed as an independent whole and can function as such (compare with the Division’s decision of 21 November 2007, ECLI:NL:RVS:2007:BB8387). In that case, the environmental permit was issued in 2012 for the expansion/conversion of a bank building into a multifunctional building, the construction of a garage and storage, and the connection of a garden wall. The municipality revoked this permit for the proposed expansion in 2014 because no action had been taken to utilise the permit for a period of 26 weeks. On appeal, the District Court found that the municipal executive acted reasonably in determining both that a private-law issue had clearly arisen that obstructed execution of the construction plan and that a plausible case had not been presented that the environmental permit would be utilised in the near future. In this respect, the District Court also found that part of the proposed expansion – specifically, the storage and the garage – stood on land that was owned by another party and that that party had no intention of transferring title to that land. The notification of a change in the subordinate nature, entailing the removal of the storage and garage from the construction plan, did not have to be addressed because the environmental permit to which the notification referred had already become irrevocable, which meant that a new application would have to be submitted to alter the construction plan (compare the Division’s decision of 19 November 2014, ECLI:NL:RVS:2014:4168).
The question is: wasn’t this just a bit too easy? After all, the notification could also have led to the conclusion that these elements (garage and storage) could be viewed, and function, as an independent whole. Doesn’t that mean that it would also have been an option to revoke part of the permit? Given that we have not examined the file, the decision is not immediately intelligible and can be viewed as perhaps offering the revocation of environmental permits a little too much encouragement. The case law in recent years has allowed governments more leeway. They are now permitted to consider whether the failure to utilise a permit in good time is attributable to the permit holder. In addition, the simple fact that permit holder cannot make a plausible case that the permit will be used in the near future can justify the revocation of an unused building permit (decision of 23 December 2015, ECLI:NL:RVS:2015:3916).
So, what will become of the Division’s previous findings (inter alia, in the decision of 1 February 2017, ECLI:NL:RVS:2017:221), namely that a decision revoking an environmental permit should be based on considering all of the interests involved and weighing them against one another? These interests include not only those of the administrative body, but also the permit holder’s financial (and other) interests as well. Given that the latter are generally substantial. I would prefer a policy that takes these kinds of nuances into account.
Or maybe there should be a heading at the top of every environmental permit that reads: IMPORTANT: FAILURE TO BUILD FOR A PERIOD OF 26 WEEKS WILL RESULT IN THE FORFEITURE OF THIS PERMIT. After all, if revocation is such a simple matter, hasn’t it already come down to that for builders in the Netherlands anyway?