Disproportionate enforcement?

Fleur

Have you ever faced enforcement proceedings that, in your opinion, were disproportionate or with which you disagreed? In a few cases, you may then be vindicated and the enforcement procedure is indeed deemed disproportionate. This was the case, for example, in the ruling we discuss in this post.

First, a word of theory. Enforcement by the government is possible only when laws and regulations provide for it. The government has a duty of principle to enforce. This means that, in principle, the government, or at least the competent authority, must enforce whenever possible under laws and regulations. Nevertheless, the government may refrain from enforcement in the event of special circumstances. Special circumstances exist if there is a concrete prospect of legalisation, or if enforcement is disproportionate in relation to the interests to be served.

In its judgment dated 13 December 2023 (ECLI:NL:RBAMS:2023:7985), the Amsterdam District Court had to rule on the proportionality of enforcement by the municipality. This case involved the following facts. The owner of a house had replaced a window frame in his house with one made of a different material, which did not enlarge the frame, but which caused the window layout to change. Under previous legislation (Wabo), a permit requirement for this was included in section 2.1(1)(a) of the Wabo. The college then received an enforcement request from local residents against replacing the window frame because the frame is of different material and causes a different window layout.

The court then ruled that the college could take the view that enforcement action was disproportionate in relation to the interests to be served by it. The board could therefore refrain from enforcement. After all, the dimensions and colour of the window frame had not changed, so that the replacement of the window frame had a minor spatial change, the interests of third parties were not disproportionately affected, and there was no question of an exception to the building regulations and no real nuisance for local residents. The court also took into account that the college had made it known that if a permit application had been submitted for the change of the window frame, it would have to grant it because of the absence of the ground for refusal. Finally, the change of window frame is not subject to a permit requirement under the Environment Act, and although the Environment Act does not apply to this case, it is relevant in the context of balancing interests. The college was therefore also allowed to consider this aspect in its decision-making.

If enforcement proceedings have been initiated in 2023 against works carried out by you without the required environmental permit, it is therefore wise to check whether a ground for refusal would exist if you submitted a permit application and whether similar works would also require an environmental permit under the Environment Act. After all, if this is not the case, there is a chance that enforcement would be disproportionate. Whether this is the case will always have to be considered on a situation-by-situation basis.

Are you yourself facing (disproportionate) enforcement proceedings or do you have other questions about enforcement proceedings? If so, please contact Gerard van der Wende, Petra Lindhout or Fleur Huisman.

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De Haij & van der Wende

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Dennis Oud

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Erwin den Hartog

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Fleur Huisman

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Petra Lindthout

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Gerard van der Wende

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