Extension of period of benefit due to reliance on third parties 

When an administrative body imposes an order under penalty or order under administrative order, the violator is given a period of time to end the violation. This is called the period of grace. Sometimes it is not possible for an offender to terminate the violation within the grace period. For example, the violator may be dependent on others to end the violation. The violator will then request the governing body to extend the beneficiary period. In some cases the administrative body will go along with this, but there are also cases where the administrative body believes that extension is not justified. 

This was the case in the judgment of the preliminary relief judge of the District Court of Northern Netherlands of October 24, 2024. In this case, the violator received an order under penalty payment because his poultry slaughterhouse did not comply with the noise regulations. The college had attached a period of grace to the order under penalty. That grace period had already been extended once, but the violator requested the college to do so again. Due to a delay in the delivery of soundproofing devices, he was unable to comply with the order imposed by the college earlier. In the meantime, however, the violator had already taken measures that had significantly reduced noise levels. Nevertheless, the college rejected the violator's request. The violator therefore filed a request for injunctive relief with the preliminary relief judge, who then had to rule on the legality of that rejection. 

The preliminary injunction judge first appoints that the following emerges from established case law of the Administrative Law Division of the Council of State: 

• The purpose of the period of enjoyment is to end the violation. It is important to note that the period of enjoyment may not be longer than necessary to end the violation. 
• The administrative body has some discretion in determining the length of the period of benefit. 
• The benefit period is not intended to give the violator the opportunity to await the outcome of objection or appeal proceedings. 

If the beneficiary period is too short to comply with the order because the violator depends (in part) on third parties to do so, the violator can request an extension of the beneficiary period, as the violator did in this case. In assessing that request, what matters is the extent to which the violator took timely steps to comply with the order. If the violator does not take steps to comply with the burden until the day before the period of benefit expires, the period of benefit is unlikely to be extended. 

In this case, the preliminary injunction judge ruled that the violator had already taken temporary measures to comply with the noise limit, in anticipation of the realization of the soundproofing facilities. The Municipal Executive has therefore provided insufficient and unsound reasons for the rejection of the violator's request, and the judge in preliminary relief proceedings therefore extends the period of beneficiary until December 6, 2024. 

Are you concerned that you cannot terminate a violation committed by you within the beneficiary period, for example because you are dependent on a supply or service from third parties, or because there is a concrete prospect of legalization, and are you wondering whether in your case the beneficiary period can be extended, or whether you should file a request for injunctive relief? If so, please contact Gerard van der Wende or with Fleur Huisman. 

Link ruling