Is the high cost of moving a gazebo a reason to refrain from enforcement action?

As discussed many times before, the government has a duty of principle to enforce. In short, this means that the government must enforce against violations if it has the authority to do so, unless there are special circumstances that allow the government to refrain from enforcement. Special circumstances may exist if there is a concrete prospect of legalisation, or if enforcement is so disproportionate in relation to the interests to be served that enforcement would not be justified.

The duty of principle to enforce is a much debated topic in case law, simply because many citizens and companies believe that enforcement should have been waived in their specific case. This was also the case in the decision of the Administrative Law Division of the Council of State on 30 April 2025. In this case, a citizen had built a garden shed in his front garden without the necessary permits. The municipal council had therefore imposed an order under penalty to remove the garden house and keep it removed. The citizen disagreed with this, as although he had been allowed to build the gazebo 3 metres away in his garden without permits, it would be disproportionate to require him to move the gazebo. He therefore believes there is a special case where the college should have refrained from enforcement. The court agreed with the citizen, ruling that the order under penalty should not have been imposed. The college then appealed to the Division, where the question was whether there was actually a special case in which enforcement should have been waived.

The Division ruled that this was not the case because the interest invoked by the citizen, namely that it would be very costly to move the gazebo, does not make for a special case that should have dispensed with enforcement, as building without the required planning permission is at the citizen's own risk. Thus, this cannot be held against the college.

From this ruling, we can conclude that high costs for removing or moving a structure built without an environmental permit does not create a special case that should have led to a waiver of enforcement, simply because it is at the citizen's or company's own risk.

Read the ruling here.