Can you rely on a councillor's commitment? It depends on the circumstances of the case.

In practice, we often see citizens and businesses relying on promises made by an alderman, but is this really possible? The Administrative Law Division of the Council of State gave an opinion on this in its ruling of 10 July 2024 in an issue where a promise by an alderman played a role. This ruling involved the following. The municipal council of the municipality of Best had imposed an order under penalty payments seeking the removal of the house, shed, canopy and aviary erected without planning permission. With regard to the dwelling and the shed, the appellant invoked the principle of the protection of legitimate expectations. Indeed, he argues that a former planning councillor in the past gave him permission to build and use the dwelling with shed on the plot by a handwritten letter. The appellant believes he was entitled to rely on the commitment in that letter.

The Division ruled that a person who invokes the principle of reliance must make it plausible that promises or other statements were made or conduct carried out on the part of the government, from which he could and should reasonably infer, in the given circumstances, that the administrative body would exercise a particular power and, if so, how.

In any case, there is no legitimate expectation if:

1. the person invoking the principle of reliance has misrepresented or incomplete the relevant facts and circumstances,
2. he should have realised, given his knowledge or expertise, that the statement or conduct was contrary to the applicable rules of law, or
3. the statement was so clearly contrary to the applicable rules of law that he should have realised it.

While the appellant had a letter from the former councillor, that letter did not state that the then councillor considered that building the house and shed did not require an environmental permit. In those circumstances, the appellant should have realised that the alderman's statement did not constitute a declaration that it would be permissible to build and use a house and shed without an environmental permit. Of relevance here was also that the appellant knew that, as a rule, building a house and shed required an environmental permit. Thus, the appellant could not derive confidence from the letter that no permit was required. Nor could the appellant rely on the fact that the municipal executive would never take enforcement action. The appellant's reliance on the principle of reliance was therefore not upheld.

Are you planning to build something or have you already built something without an environmental permit and are you relying on the promise of an alderman of the municipality? If so, always check whether you actually qualify that promise as a promise. For questions about the principle of trust or other environmental law matters, please contact the lawyers of the Environmental Law section of our office.

You can read the ruling here: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RVS:2024:2822