The principle of equality and enforcement: do enforcement policies sufficiently exclude inequality?

If you as a citizen or company construct a structure without the necessary permits, or use your plot in a way that is not permitted by the zoning plan, the administrative body will generally take enforcement action. This is because the administrative body has the so-called “duty of principle to enforce. This means that if there is a violation, the administrative body must, in principle, enforce in order to end the violation (or have it ended). Such an enforcement procedure can cause a great deal of frustration for citizens and businesses, especially if they notice that there are many similar cases in the area where citizens and businesses commit the same violation and where there is no enforcement by the administrative body. Can this be done just like that? 

This issue was discussed by the District Court of The Hague in its ruling of Oct. 11, 2024. The plaintiffs had an order under penalty payments imposed on them because they had constructed structures on their property without an environmental permit. The plaintiffs argued that the enforcement by the college violated the principle of equality, because several structures in the area had been built without an environmental permit, against which the administrative body did not take action. The court ruled that to successfully invoke the principle of equality, there must be equal cases that are treated unequally, without good cause. The principle of equality requires the administrative body to pursue a consistent and well-considered administrative policy in cases where similar violations are committed by different offenders. Thus, the administrative body must provide clear direction and follow a general line of conduct regarding enforcement action in similar cases.

This case indeed involved a violation of the principle of equality. Despite the court's understanding that the board cannot take action against all illegal structures at once, the board did not specify when it will conduct inspections against the other illegal structures and how this relates to its enforcement policy. The administrative body has not provided sufficient reasons as to why enforcement in similar cases is not carried out, as a result of which the enforcement decisions are not based on solid grounds and there is a clear violation of the principle of equality. 

Have you received an enforcement decision for an illegal construction or use, while there are several similar cases in your area, or do you simply disagree with the enforcement decision? If so, please contact Gerard van der Wende or Fleur Huisman.

You can read the ruling here