Proportionality test: should the college have refrained from enforcing against (illegal) work on licensed barns?

In a previous blog, I have already discussed in detail the relationship between the principle duty of enforcement and the principle of proportionality. For an explanation of the relationship between these two concepts, I refer you to that blog.

In the judgment of the interim relief judge of the Limburg District Court of 24 April 2025, which is discussed in this blog, this relationship came up again. The subject of this ruling was an order under penalty imposed on the plaintiff in this case for converting two stables without the necessary environmental permit. The order required the plaintiff to return the stables to the licensed situation. The plaintiff lodged an objection and later an appeal against this decision of the college and the decision on the objection, inter alia because it considered that enforcement action was disproportionate in relation to the objectives to be served by it. This is because the stables being converted were legally erected in 1973 and may therefore remain on site. Enforcement action against the construction work on the stables, the use of the stables and/or the solar panels installed on the roofs cannot therefore achieve the goal of reducing petrification in the outlying area. The college, on the other hand, believes that enforcement is mainly concerned with restoring the property to its lawful state and complying with planning regulations, and that in addition, there is also a third-party enforcement request.

The interim relief judge referred to the Harderwijk decision and ruled as follows. Although the judge in preliminary relief proceedings could follow the municipal executive as regards compliance with the planning rules, he did question whether enforcement action was proportionate in this case, especially the question of the purpose of enforcement and its necessity. The preliminary relief judge then ruled that the third-party's interests were not served by returning the stables to their lawful, licensed but also dilapidated state, because the third-party only wanted the stables to be removed in their entirety. Regarding the public interest, the interim relief judge ruled that the enforcement that has just taken place does not serve those public interests. The conclusion, therefore, is that the board did not give sufficient reasons why enforcement action is proportionate in this case.

Do you have any questions about the principle of proportionality and the duty to enforce? If so, please contact Gerard van der Wende or Fleur Huisman.

You can read the ruling here.