The Board wrongly ruled on the objection to the amendment permit

In most cases, the municipal executive is the competent authority responsible for deciding on building permit applications. However, there are also cases in which it lacks the authority to make such decisions.

This was the case in the ruling by the Administrative Law Division of the Council of State on June 3, 2026. The ruling concerned a home expansion in Middelburg. The municipal executive had granted an environmental permit for that expansion in 2022. An objection was filed against that permit without success, and the objector subsequently appealed to the district court. Ultimately, the case reached the Council of State. While those proceedings were still ongoing, the homeowner applied for a permit for a minor modification to the building plan, as it turned out that a part of the home had been built in deviation from the permit. That modification permit was granted in 2024. An objection was filed against the amendment permit. That objection was handled by the municipal executive in the usual manner and ultimately declared unfounded. The court reviewed the decision on the objection (also) on its merits and subsequently ruled that the decision on the objection was insufficiently substantiated.

Subsequently, the person who had objected to the amendment permit appealed to the Council of State. The Council of State heard the appeals against both the original permit and the amendment permit simultaneously at a hearing.

Regarding the amendment permit, the Council of State ruled that the municipal executive should not have made any decision on the objection at all. The amendment to the building plan (to which the amendment permit related) was of a minor nature. Because an appeal was still pending against the original permit, the municipal executive should have forwarded the objection to the Council of State pursuant to Article 6:109 of the General Administrative Law Act (Awb) to be assessed in the ongoing proceedings. Because the municipal executive nevertheless decided on the merits of the objection itself, it acted without authority. The Council of State therefore annulled the decision on the objection.

The Council of State also issued an important ruling regarding the applicable legislation. The original permit from 2022 logically still fell under the old legislation. Although the amendment permit was granted in 2024 and therefore after the Environmental Act came into effect, because the permit is considered part of or an amendment to the original permit, the proceedings against the amendment permit must also be handled under the old legislation.

In a permit procedure, it is therefore important to know the difference between a substantial and a minor amendment and to always verify which legislation applies.

Do you have questions about a (amendment) permit procedure? Please contact Gerard van der Wende or me.

You can read the ruling here.