does not exist: when a burden is unenforceable

When an administrative body imposes an order subject to a penalty, the aim is to put an end to an illegal situation. The offender is then ordered, for example, to cease illegal use or to remove an illegal structure. But what if the offender is unable to do so?

This was discussed in the ruling of the Administrative Law Division of the Council of State on November 5, 2025. It concerned an order subject to a penalty that had been imposed for the construction of various extensions to a main building and the creation of two independent dwellings in that same main building, without the necessary environmental permits.

The legality of the order subject to a penalty was established in the opinion of the Division. The only remaining issue to be decided was the legality of the collection of the penalty. For that assessment, it was important that the offender had already indicated to the council that it was not entirely possible to remove one of the rooms because the outer walls were on the property line and were shared, which meant that the neighbors' permission was required to demolish the outer walls. The neighbors refused to give their permission. The offender therefore left only the outer walls standing, but removed the rest of the structure. Nevertheless, the municipal executive ruled that the order had not been fully complied with and that the penalty payment would therefore be collected.

The Division ruled that the board had acted contrary to the principle of due care. According to established case law, the council may refrain from collection in exceptional cases, for example if it appears that an order is unenforceable. According to the Division, the order was unenforceable in this case because the offender was dependent on the consent of the neighbors. The council was aware of this, but nevertheless issued the collection order, which was therefore made without due care. 

This ruling emphasizes that collection must be waived in exceptional cases and that the council must therefore always check whether the order is enforceable and the collection reasonable. 

You can read the ruling here.