Government enforcement: how does it work and what can you do about it?⚖️

Enforcement by public authorities is a common topic in environmental law and takes various forms. This blog discusses the basics of enforcement. It will examine the grounds for enforcement, the various forms of enforcement and associated procedures, and the legal remedies available to members of the public and businesses.

The grounds for enforcement

Enforcement often takes place following a report or a so-called enforcement request from third parties, after which an inspection is carried out. Depending on the enforcement policy of the relevant administrative body, the latter may also carry out inspections on its own initiative. Once the administrative body has identified a breach, the enforcement procedure is set in motion.

An offence may, for example, involve the use of a building in contravention of the environmental plan, or structures erected without planning permission. There must be a breach of a law or regulation. This may be a local authority regulation, such as the environmental plan or the General Local By-laws (APV), but may also be legislation and regulations issued by central government, such as the Environment Act or the Building Works in the Living Environment Decree (Bbl).

The offence that has been detected must be brought to an end and, in some cases, (also) punished. However, the administrative body does not proceed directly to enforcement.

Warning or notice of intention

Once the offence has been detected, in most cases the offender is first notified of it. In some cases, the offender first receives a warning from the administrative body. The warning highlights the offence and instructs the offender to cease the offence or ensure it does not occur again. If the offender complies, no enforcement action is taken.

A warning is not a requirement, but a policy decision by an administrative body, in which the urgency and nature of the offence play a role.

It is therefore also possible to send a notice of intent to enforce directly to the offender without issuing a prior warning. This means that the offender is informed of the offence and is given the opportunity to cease the offence before enforcement takes place.

The offender may submit a statement of views in response to a notice of intent. This is the offender’s response to the established infringement, in which they may, for example, explain how the infringement came about, or why there is no infringement at all and enforcement is therefore not warranted. Normally, a two-week period is allowed for submitting a statement of views.

There are also cases in which neither a warning nor a notice of intent is issued. This is the case where there is such urgency in bringing the infringement to an end that there is no time for a notice of intent and a statement of views. This is referred to as urgent administrative enforcement and/or extremely urgent administrative enforcement, but will not be elaborated on further here.

Enforcement measures

If the infringement continues after a warning and the notice of intent have been issued, and the statement of views does not cause the administrative body to change its mind, ‘proper’ enforcement begins.

There are three enforcement instruments for this purpose:

• Order subject to a penalty payment
• Order subject to administrative coercion:
• Administrative fine

These three instruments and the associated procedures are set out in detail below.
Incidentally, the revocation of a licence can also be regarded as a means of enforcement, but this is not discussed further here.

Order subject to a penalty payment

An order subject to a penalty payment is a remedial sanction. The aim is to put an end to the infringement and restore the legal situation. To achieve this, the offender is given a period of time in which to cease the infringement. This is known as the grace period.

If the breach has not been remedied by the end of the grace period, the offender must pay a penalty payment. The amount of the penalty payment varies from case to case and, in principle, depends on the government’s enforcement policy, but may also be influenced by specific circumstances.

An example: the municipality of Rotterdam has established that the firm Vis has erected a new fence on its premises. According to the municipality of Rotterdam’s environmental plan, such fencing may be no more than two metres high. The firm Vis’s fence is three metres high. This therefore constitutes a breach of the environmental plan. The municipality wants the fence to be lowered to the permitted two metres. After sending a notice of intent (and, where applicable, a warning beforehand), the fence has not been lowered and the breach therefore continues. The municipality has issued Vis with an order subject to a penalty payment. The fence must be lowered to two metres within six weeks. If Vis fails to do so on time, a penalty payment of €2,000.00 must be paid.

Administrative order

An administrative order is also a remedial sanction. The aim is to put an end to the infringement and restore the lawful situation. Here too, the offender is first given a period of time in which to put an end to the infringement (the grace period).

The difference from an order subject to a penalty payment is that, if the infringement has not been brought to an end by the expiry of the grace period, no penalty payment is payable. In the case of an order subject to administrative enforcement, any infringement that continues after the expiry of the grace period is brought to an end by the administrative body itself, at the offender’s expense.

An order subject to administrative enforcement is often used in cases of urgency or danger, where the financial pressure of a penalty payment is ineffective, but also where the offender is unable to remedy the breach themselves.

Example: during an inspection of a residential renovation project by a property maintenance company, the inspectors establish that there is a risk of collapse. The offender is given a short deadline to remedy the risk of collapse themselves. If the offender fails to do so in time, the administrative body will have the necessary work carried out, given the danger to the surrounding area. The bill for the work will be sent to the offender.

Administrative fine

An administrative fine is a punitive sanction. Its purpose is not to remedy an offence, but to punish the offender for committing the offence and to deter them from committing it again.

There is no grace period attached to an administrative fine. The only time limit that applies is the payment deadline. In principle, the fine must be paid by the offender within six weeks.

An administrative fine cannot be imposed in every case. The law permits this only in specific cases and situations. These include, for example, the accommodation of migrant workers and letting rooms to students, as well as breaches of the Alcohol Act. For most offences relating to building regulations, there is no authority to impose fines, and remedial sanctions must be used instead.

There are also cases in which an administrative fine is imposed alongside a remedial sanction. In such cases, the remedial sanction is intended to bring the offence to an end, whilst the administrative fine serves as an additional penalty or punishment.

An example: a property is let by the owner to four students without the necessary licence. The letting must be stopped. To this end, an order subject to a penalty payment is imposed. However, the administrative body also wishes to penalise the owner for the offence. To do so, an administrative fine is imposed.

How is enforcement brought to an end?

A number of steps can be taken to bring enforcement to an end.

For remedial sanctions, there are three:

• Comply with the order within the grace period. The breach will then be rectified in time and enforcement will no longer be necessary. No penalty payment will need to be made and no administrative coercion will be applied.
• Regularisation: in some cases, the infringement can still be authorised. If that authorisation is granted in time (i.e. before the expiry of the grace period), the infringement ceases to exist and enforcement can be discontinued. No penalty payment needs to be made and no administrative coercion needs to be applied.
• Legal remedies: legal remedies are available against the remedial sanctions. The first step is to lodge an objection. If that objection is declared unfounded, an appeal may still be lodged with the administrative court and – in most cases – a further appeal with the Administrative Law Division of the Council of State. If the offender is successful in their objection or (further) appeal, the enforcement proceedings are dropped.   

The situation is slightly different for administrative fines. As an administrative fine is not a remedial sanction, there is no need for the offence to be regularised or brought to an end. In this case, enforcement is not an ongoing procedure, but is based solely on a single act: the imposition of the fine. That fine must be paid. To avoid having to pay the administrative fine, the same legal remedies are available as for remedial sanctions (objection and (further) appeal).

Please note: in the case of an order subject to a penalty payment, it is therefore not sufficient simply to pay the penalty. After all, the offence has not yet been brought to an end. As long as this is not the case, enforcement will continue.

Conclusion

These are the basics of enforcement by public authorities. Are you facing enforcement action, or do you fear that this may happen in the near future? If so, please contact Gerard van der Wende or myself.