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In practice, we often see citizens and businesses relying on promises made by an alderman, but is this really possible? The Administrative Law Division of the Council of State gave an opinion on this in its ruling of 10 July 2024 in an issue where a promise by an alderman played a role. This ruling involved the following. The municipal council of the municipality of Best had imposed an order under penalty payments seeking the removal of the house, shed, canopy and aviary erected without planning permission. With regard to the dwelling and the shed, the appellant invoked the principle of the protection of legitimate expectations. Indeed, he argues that a former planning councillor in the past gave him permission to build and use the dwelling with shed on the plot by a handwritten letter. The appellant believes he was entitled to rely on the commitment in that letter.

The Division ruled that a person who invokes the principle of reliance must make it plausible that promises or other statements were made or conduct carried out on the part of the government, from which he could and should reasonably infer, in the given circumstances, that the administrative body would exercise a particular power and, if so, how.

In any case, there is no legitimate expectation if:

1. the person invoking the principle of reliance has misrepresented or incomplete the relevant facts and circumstances,
2. he should have realised, given his knowledge or expertise, that the statement or conduct was contrary to the applicable rules of law, or
3. the statement was so clearly contrary to the applicable rules of law that he should have realised it.

While the appellant had a letter from the former councillor, that letter did not state that the then councillor considered that building the house and shed did not require an environmental permit. In those circumstances, the appellant should have realised that the alderman's statement did not constitute a declaration that it would be permissible to build and use a house and shed without an environmental permit. Of relevance here was also that the appellant knew that, as a rule, building a house and shed required an environmental permit. Thus, the appellant could not derive confidence from the letter that no permit was required. Nor could the appellant rely on the fact that the municipal executive would never take enforcement action. The appellant's reliance on the principle of reliance was therefore not upheld.

Are you planning to build something or have you already built something without an environmental permit and are you relying on the promise of an alderman of the municipality? If so, always check whether you actually qualify that promise as a promise. For questions about the principle of trust or other environmental law matters, please contact the lawyers of the Environmental Law section of our office.

You can read the ruling here: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RVS:2024:2822

Living next to a nature reserve is not pleasant for everyone.

Our colleague Petra Lindhout wrote an annotation following a ruling by the highest administrative court in a case where local residents of a Natura 2000 nature reserve experienced groundwater nuisance on their plots. They submitted an enforcement request to the Provincial Executive of North Brabant. The local residents believed that European nature conservation law had been violated. And then they got into the legal merry-go-round. The college did not decide on their request, they did not take a decision on the request. The local residents still tried to enforce a decision through the courts, which is how they ended up in court. However, the court declared itself incompetent to hear the appeal, as it held that the enforcement request was not an application within the meaning of the law. The local residents then appealed to the Council of State. It then had to decide whether the local residents' enforcement request was an "application" (to make a decision) within the meaning of the law. That ruled that the enforcement request did have to qualify as an application to make a decision. But that does not mean that action will now be taken. Why not?

You can read more about it in the annotation.

If you have any questions, please contact our Environmental Law specialists.

It was a great end to the hockey season for our colleague Tessa Sipkema's team from HC Rotterdam at the NK Trimhockey at HCR! 🏑 🏆
Being first in the pool meant qualification for the Feijenoord 1 trim team for the Dutch Trim Hockey Championships.

On Saturday 29 June, all champion teams from across the country came together for an epic final tournament. 🌟

It was not only hockey, but also fun with a BBQ including a party night! 🥳

With a shared 5th place, this is a great final result for this newcomer to the NK! 💪🏻

Next season too, our office is sponsoring the hockey club and providing Feijenoord with their need for materials, the Friday Hockeyhap and institute training sessions for the neighbourhood children of the district. We support the social impact the hockey club has on Rotterdam Zuid. 

On Friday, 21 June, we had our highly successful golf day at Capelle Golf Club. Despite the weather not fully cooperating, the atmosphere was great, making it a wonderful day for all participants.

A Day for Everyone

The golf day was open to both experienced golfers and beginners. The golfers enjoyed the challenging holes on the beautiful course at Capelle Golf Club, while the non-golfers had fun during a two-hour golf clinic guided by two golf pros. There was something for everyone, ensuring that all could enjoy the sporty day.

Although the weather conditions were not ideal, with occasional heavy showers, no one let it dampen their spirits. Raincoats and umbrellas were the fashion of the day, but the good atmosphere quickly overshadowed the weather. The beautiful surroundings and the enthusiasm of the participants made it a successful day.

After this sporty day, we concluded with a generous reception entirely provided by restaurant Mulligan. Here, everyone could chat about their performance on the course and enjoy delicious snacks and drinks. The day ended festively with an award ceremony, where both the best golfers and the most enthusiastic beginners were celebrated.

We would like to thank the organisation of Capelle Golf Club and restaurant Mulligan for their tremendous effort and hospitality. Additionally, we want to thank all the participants for their enthusiasm and participation in our successful golf day. Their presence and sporty spirit made this day a success!

We hope they had as much fun as we did and look forward to seeing everyone at our next events!

This is the fifth and final blog in the series 'The Position of the Client in Construction Projects,' and in this blog, we specifically discuss the revised 5% rule, which provides additional guarantees to private clients. The 5% rule stipulates that a private client having a house built has the right to withhold 5% of the contract sum and deposit this amount with a notary. For instance, if there are still defects upon completion, the deposit serves as a guarantee that the contractor will rectify the issues. Until 1 January 2024, this 5% rule had several disadvantages, especially for the client. Private clients were often unaware that the funds would be released three months after completion if they did not timely indicate unresolved defects and their desire to retain their security. It also frequently occurred that when a contractor wanted to access the deposit funds, they would offer an alternative form of security in the form of a bank guarantee. However, bank guarantees often came with many more conditions that had to be met to release the funds compared to a deposit.

From 1 January 2024, several changes to the 5% rule have been implemented to strengthen the position of the private client.

Article 7:768 of the Civil Code now states:

1. The client can, without invoking Article 262 of Book 6 and while retaining their right to delivery, withhold a maximum of 5% of the contract sum on the final instalment(s) and deposit this amount with a notary instead of paying it to the contractor.
2. The contractor must give the client, no later than two months after the time of completion but not earlier than one month after that time, written notice to indicate whether they wish to use the authority granted in Article 262 of Book 6. The contractor must send a copy of this notice to the notary.
3. The notary will release the amount to the contractor three months after the time of completion if they have received the copy mentioned in the second clause unless the client wishes to use the authority granted in Article 262 of Book 6. In that case, the client must inform the notary of the amount to be retained in the deposit.
4. The notary will also release the amount to the contractor if the client consents, the contractor provides equivalent security to the deposit, or a binding decision states that a deposit is not or no longer justified.
5. If the client owes damages to the contractor due to the deposit mentioned in clause 1 or the equivalent security provided by the contractor, this will be set at the statutory interest referred to in Article 119 of Book 6. During the three months referred to in clause 3, this is not owed, even if no defects are found.

Therefore, 5% of the contract sum can still be deposited with the notary. However, the notary can no longer release the deposit funds to the contractor after the three-month period post-completion without conditions. The notary may only release the funds if the contractor has given the client the opportunity to indicate whether they wish to exercise their right to suspend payment. Between one and two months after completion, the contractor must inform the client in writing of their right to suspend payment and send a copy of this notice to the notary. The notary will only release the funds if they have received this notice from the contractor and if the client has not indicated that they wish to retain the deposit (partially).

Because the client can no longer be surprised by the automatic release of the deposit, they now have a stronger position. They can timely indicate that the funds or a portion thereof should remain in the deposit, especially if there are still unresolved defects. The new rule also reduces ambiguity about whether the house has been completed, as the contractor must send the notice between one and two months after completion. This additional step incentivizes the contractor to ensure the house is delivered without defects. Contractors should ensure that the written notice to the client is sent by registered mail to avoid disputes about whether the notice was received.

However, the client cannot retain the deposit indefinitely. If they wish to retain the deposit beyond the three-month period, they must meet the requirements of Article 6:262 of the Civil Code. There must be shortcomings on the contractor's part significant enough to justify holding the funds in the deposit, and there should be a balance between the severity of the shortcomings and the amount retained (proportionality).

A final change in the new rule concerns the requirements for alternative security. In practice, instead of the deposit amount, a bank guarantee might be provided after completion as security for any unresolved defects. Previously, the terms of these bank guarantees often offered less security to the client than the deposit or required additional actions from the client. This is no longer allowed. If a contractor wants to offer alternative security, it must be equivalent to the deposit. Legislative history indicates this is the case if the security (in the form of a bank guarantee) is enforceable under the same conditions as the deposit. No additional requirements may be imposed.

In January of this year, our colleague Petra Lindhout, together with Professor Mr. H.J.M. Havekes, wrote an article in the journal Milieu & Recht about the bill to amend the tax system of the water board. The bill stipulates that the financing of tasks related to the water system will take greater account of the benefit principle. The benefit principle is based on the idea that those who gain more advantage from water board activities (which ensure we have dry feet and clean water) pay more. Additionally, the bill includes proposals in the areas of climate adaptation, energy transition, and circular economy and, under certain conditions, makes it possible to finance targeted water supply projects (for example, for farmers).

This bill is currently being discussed in the House of Representatives, where several amendments are being proposed. Therefore, the article serves as a snapshot of the situation. We are closely monitoring developments.

Read the publication here: M en R 2024 2 – The Bill to Amend the Tax System of the Water Board (3)

For questions, you can contact our Environmental Law specialists.