Department: you should not whine about flagpoles, even if you are looking right at them!

To obtain an opinion from an administrative law judge, it is required that a person be an interested party. In other words, someone must have a direct interest in a decision. In other words, only if someone is directly affected by the actual consequences of an activity that a decision authorizes can that person go to the administrative judge.

On Nov. 7, 2018, the Division issued a somewhat striking ruling (ECLI:NL:RVS:2018:3614) on the question of whether a group of residents with a direct view of a long row of flagpoles is an interested party in a decision about those flagpoles.  

What was going on?

This case concerns a long-standing dispute over 20 flagpoles on the grounds of water sports club Aegir in Rotterdam. In 2014, a row of 20 flagpoles over a length of 200 meters and with a height of 6 meters were placed on the premises of Aegir. These flags were put up to give sponsors of the water sports association the opportunity to advertise. Aegir earns €10,000.00 annually from the flagpoles.

Aegir's site is located on the Bergse Voorplas. Neighbors who live on the opposite side of the Bergse Voorplas feel that the row of flagpoles spoils their view and have asked the municipality to revoke the permit. The municipality refuses to do so, and going to court is also unsuccessful. The local residents then go to the Administrative Law Division of the Council of State.

No "effects of any significance"

The Division did not reach a substantive ruling in the Nov. 7 ruling, because the Division believes that none of the neighborhood residents has a personal interest in a substantive ruling. It is true that all of the neighborhood residents are actually affected by the presence of the flagpoles, but these effects are not "serious enough," according to the Division.

In doing so, the Division referred to a previous ruling of March 16, 2016 (ECLI:NL:RVS:2016:737). In that ruling, the Division made a correction to the "interested party concept. The Division finds that merely experiencing actual consequences is not sufficient; it must involve "consequences of some significance."

Short distance to and direct view of flagpoles, but no stakeholder

In the November 7 ruling, local residents live on the opposite side of the Bergse Voorplas with a direct view of Aegir's property and flagpoles. Between the plots is a distance of (at least) 130 meters. Because there are no intervening buildings, all local residents have a clear view of the flagpoles. Some of the local residents have "only" oblique visibility. Another portion of the neighborhood residents have a frontal view of the flag row.

The Division's verdict is the same for all neighborhood residents: consequences of any significance are lacking, because the consequences of the row of flags for their residential, living or business situation are so minor that a personal interest is lacking, according to the Division. The Division takes into account the nature of the construction - a row of flags - and the circumstance that the view of the local residents on the Bergse Voorplas is not disturbed, because the row of flags is located on the opposite side of the lake.

This judgment arouses some surprise, because the Division does seem to be making a very subjective judgment here about what it considers a "personal" interest. A free (frontal) view of a 200-meter long row of 20 flagpoles with a height of 6 meters can surely be called quite serious. Whatever of that: the Division apparently has a different opinion.

In conclusion

It can be deduced from this ruling that if you are faced with opposition to a building plan, it is always advisable to check whether there are "serious consequences" that justify an interest. After all, if this is not the case, a person will not be received at the administrative court, but also at the municipality.

Image: the flagpoles at water sports club Aegir