An environmental permit does not always provide a concrete prospect of legalisation 

When an interested party submits an enforcement request, the competent authority must, in principle, always take enforcement action. This is known as the principle of mandatory enforcement. There are two exceptions to this rule. The first is the principle of proportionality. If enforcement action in a specific case is disproportionate to the objectives to be achieved, the administrative body must refrain from enforcement. The second is a concrete prospect of legalisation. In short, this means that the violation will be legalised in the short term.

Concrete prospect of legalisation exists if an environmental permit is granted that legalises the violation. However, the ruling of the Division of 27 August 2025 shows that not all environmental permits granted provide a concrete prospect of legalisation. The ruling concerns an enforcement request submitted by a local resident against a nearby livestock farm, which is causing him nuisance. The council takes the position that there is indeed a violation, because the livestock farm is located too close to the local resident's home. Nevertheless, the enforcement request is rejected because of concrete prospects of legalisation. This is because an environmental permit has been granted for the construction of a new barn at a different location on the plot, to replace part of the existing barns. The council believes that this will remedy the violation and that enforcement was therefore unnecessary.

The Division disagrees. It ruled that there was no concrete prospect of legalisation, because the granting of the permit for the new barn did not legalise the existing situation. It merely permitted a new situation with the aim of complying with the relevant legislation and regulations.

This ruling limits the application of the exception of a concrete prospect of legalisation to situations in which the violation is actually legalised. The exception therefore does not apply to situations in which only a new, legal situation is created in a different location.

You can read the ruling here.