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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

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