Student nuisance: Municipality has to withdraw permission for a roof terrace

Recently we discussed another case in which the owner of a roof terrace successfully appealed against a decision of the municipality to remove the roof terrace. In this blog, however, we discuss a case in which someone successfully appealed against a permit granted by the municipality for a rooftop terrace by the neighbours.

Case

The owner of a property rents his building to students. For some time the students have been using the roof of the building as a roof terrace. However, according to the municipality’s zoning plan, the use of the roof as a terrace is not permitted. Following complaints from local residents, the municipality has informed the owner of the property that enforcement actions will be taken if the use of the roof as a terrace is continued.

The owner of the property then applied for an environmental permit in order to legalise its use. The application includes the construction of a fence on the roof of 185cm in height. The municipality decided to grant the environmental permit despite the fact that a roof terrace is not permitted according to the zoning plan. The planned fencing is also higher than permitted. A neighbour who overlooks the roof terrace from the back of his house, and who claims to experience serious noise nuisance from the students, appeals to the court after the municipality has previously declared his objections unfounded.

Conflict with zoning plan

Many people assume that if a permit has been granted in violation of the zoning plan, the permit was wrongly granted in that case. This assumption is often incorrect. After all, the municipality has the right to deviate from the zoning plan, but must take into account good spatial planning. In short, this means that the competent authority must ensure the maintenance of an acceptable living and residential climate.

In this case, the municipality stated that because it concerns an urban environment, local residents must tolerate some noise nuisance from each other. According to the municipality, the fact that the roof terrace has been reduced in size due to the placement of the fencing also contributes to the reduction of possible nuisance. The municipality also stated that, when granting a permit for a roof terrace, it does not want to make a distinction between use by a family or by students, since that there are also very quiet students.

Ruling

The court states that the municipality should take all the interests involved into account. The degree of noise nuisance is important in this respect. As the municipality indicates, it is plausible that the noise nuisance has decreased due to the placement of the fencing. As a result, fewer people can enter the roof terrace at the same time. However, this has not established that the remaining degree of noise nuisance should be considered acceptable. The court takes into account that the municipality did not take into account the fact that the nuisance providers in question are students with a higher chance of a deviating rhythm of life (night hours), and therefore nuisance.[1] According to the court, the municipality should have taken this into account in its decision. The court annulled the municipality’s decision.

Conclusion

Despite the court’s judgment, the environmental permit for the roof terrace has not yet been definitively dismissed. The municipality will have to take a new decision taking into account that the roof terrace will (mainly) be used by students. The municipality could also attach conditions to the use of the roof terrace by, for example, prohibiting the use of the terrace after a certain time. For local residents, the lack of conditions could therefore also be a means of challenging the municipality’s decision. In any case, it seems that municipalities will have to take more account of the presence of students in maintaining an acceptable residential and living climate in their policy.

Do you also suffer from noise nuisance from neighbours, for example, or do you disagree with an environmental permit granted to your neighbours? In that case you can contact M2 Advocaten without engagement.

Lawyer Ginio Beij (beij@m2advocaten.nl)

[1] Also see ECLI:RVS:2018:2276 en ECLI:NL:RVS:2012:BV3229

Roof terrace may remain despite lack of permit

An owner of a roof terrace had to remove her roof terrace from the municipality under penalty of a fine. She claimed, however, that certain commitments had been given to her so that she could now be confident that the roof terrace could remain in place. The judge agreed with her and so the principle of trust was successfully invoked. In this blog we will discuss this case and explicitly the principle of trust that seems to have been given a new interpretation with this judgment. 

Case study

An owner of a roof terrace is told by the municipality that she must remove her roof terrace soon. The municipality argues that a permit for the roof terrace has never been granted. The owner who bought the house with a roof terrace from the previous owner a few years earlier claims that the roof terrace has been there for 25 years without any problems. She claimed that during those 25 years there had been contact with municipal officials multiple times from which the (previous) owner could understand that no enforcement action would be taken due to the lack of the (environmental) permit. The owner says that she could now trust that this would not happen again. The municipality does not agree with this and maintains its position.

Ultimately, the case[1] ended up before the Council of State. In the end the Council of State ruled that although there was no reason for the owner to assume that no permit would be required or that she would receive a permit, she could assume, based on the contact moments of the former owners with the civil servants, that this would not be enforced. The Council of State also considers it important that the situation has lasted for 25 years and that it has not been maintained during that period. According to the Council of State, the interests of the municipality in enforcement subsequently do not outweigh the interests of the owner. The roof terrace may therefore remain.

Principle of trust

Many citizens believe that if something is promised to them by the government, they should be able to rely on it. This is also referred to in administrative law as the principle of trust. From that perspective, the judgment in the above case will not surprise many citizens. In practice, however, it turned out that it was far from easy for citizens to successfully invoke this principle. For example, a successful invocation of the principle of the protection of legitimate expectations previously required “that concrete and unambiguous undertakings attributable to the administrative body have been given by a competent third party, from which legal expectations can be derived”[2]. In short, this strict interpretation meant that, in practice, citizens could seldom rely successfully on the principle of the protection of legitimate expectations.

Gradually, the judiciary seems to have wanted to connect more to the citizens’ perspective.[3] In the discussed case, the Council of State sought advice from Advocate General Wattel of the State Council, whose advice was followed and thus leads to a new interpretation of the principle of the protection of legitimate expectations.  This line has also been followed in case law in other judgments.[4] This advice is a brief summary:

– More emphasis should be placed on how a statement or behaviour comes across to a well-minded citizen and less on what the administrative body meant by this;

– Less emphasis is placed on the precise division of powers. Previously, a civil servant could make certain promises, but if it turned out that he or she did not have the authority to make decisions, the citizen would have lost no matter what. This was particularly sour because it will often not be clear to most citizens who actually has decision-making authority. The citizen will have to make it plausible that he had reason to rely on this official. Bar staff responsible for providing general information will not be covered by this, but it is usually necessary to be able to rely on promises made by a construction inspector in connection with a construction project, even if this inspector does not have decision-making powers;

– If both previous steps have been successfully completed, a balancing of interests will then have to be carried out. This means that if a citizen is justified in relying on a promise from an administrative body, it will still be necessary to assess whether the interests of the citizen are in proportion to other interests, such as the public interest.

Conclusion

Citizens will be able to rely more successfully on the principle of trust in the future. The government will have to realise that commitments can more often lead to justified trust on the part of citizens. However, this does not mean that citizens will always get their way, even if they had reason to actually rely on government communications. Interests will always have to be weighed up, with other interests sometimes outweighing the interests of the citizen concerned. In that case, however, compensation may be possible. Fortunately for the owner of the roof terrace, there were no other important interests involved and the roof terrace was therefore allowed to remain.

Are you looking for legal advice in case of disputes with the government? Please feel free to contact M2 Advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

 

[1] ECLI:NL:RVS:2019:1694

[2] ECLI:NL:RVS:2015:1016 and ECLI:NL:RVS:2015:1871

[3] see e.g. ECLI:NL:RVS:2017:1946

[4] ECLI:NL:RVS:2019:1778 en ECLI:NL:RVS:2019:1838