Administrative body sends decision, but citizen does not receive the document: who has burden of proof?

Both case law and practice often discuss it: the administrative body sends a decision by mail, but the citizen claims not to have received anything. When the citizen does not receive a decision, it can have far-reaching consequences. Therefore, this is often litigated in case law. Such is the case in the Division's ruling of November 27, 2024. 

In this case, the plaintiff had submitted an application for a permit to replace roof tiles and facade parts of buildings on his property. However, the application was not complete and the college therefore requested additional data. The plaintiff did not send that additional data within the time limit set for this purpose, and the college therefore disregarded the permit application. The plaintiff claimed never to have received this decision and even believed that the environmental permit had been granted by operation of law because the college had not made a decision after two years. The college did not go along with this and the plaintiff objected to both the decision to set aside and the decision to refuse publication of a permit granted by operation of law. The college declared the objection inadmissible for the former part and further declared it unfounded. The court declared the appeal against it unfounded. 

The Division now had to assess whether the college had actually set aside the permit application, or at least whether it had sent this decision to the plaintiff. 

It was established that the college had not sent the letter by registered mail. It follows from established case law that in that case the college must make it plausible that the letter was sent. It is sufficient if the college proves that the letter was sent to the correct address, by demonstrating that the letter is correctly addressed, that it has a date of dispatch and that there are proper shipping records. On the contrary, the plaintiff must disprove this and dispute receipt of the letter. In this case, the college had plausibly established that the letter was sent and the plaintiff could not sufficiently disprove or dispute this. 

In practice, this means that you yourself must keep a close eye on the deadlines and, more importantly, maintain good contact with the municipality and not wait. If you need help with this in an objection or appeal procedure, please contact Gerard van der Wende or with Fleur Huisman. 

You can find the link to the ruling of the Council of State here.