Deviating from policy rules due to 'special circumstances': trend change at the Division?

When is it permissible to deviate from policy rules? The Administrative Law Division of the Council of State (the "Division") recently issued an important ruling on this issue. From now on, all circumstances of the case will have to be assessed when determining whether there is a reason to deviate from policy rules in a concrete case. This was completely different before.

Old line Council of State: 'discounted' circumstances are not 'special'

An administrative body should follow its own policy rules. This is only different if doing so would have "consequences for one or more interested parties which, due to special circumstances, would be disproportionate in relation to the goals to be served by the policy rule. This is stipulated in Article 4:84 of the General Administrative Law Act.

Until October 26, 2016, the Division's line was that, by definition, special circumstances could not exist if certain circumstances had already been taken into account when the policy was drafted. Consider, for example, minimum demolition rules included in policies to allow new construction. Or circumstances mentioned in policy rules that cannot be a reason for refraining from imposing an order under penalty or the (temporary) closure of a catering establishment, for example.

The Division's consistent line was that if such circumstances were raised against a decision, they simply did not need to be assessed and by definition could not constitute a special circumstance to deviate from policy rules. After all, they were already factored into the policy rules.

New line by Council of State: 'discounted' circumstances can be 'special' though

In an Oct. 26 ruling, the Division abandoned this line. As of Oct. 26, administrative bodies will have to consider all circumstances when making a decision. According to the Division, this has a practical reason. According to the Division, even if an administrative body has considered certain circumstances when drafting a policy rule, that does not necessarily mean that in a concrete case such circumstances, alone or together, can lead to disproportionate consequences.

The Division's new line, then, is that an administrative body must consider all the circumstances of the case in a concrete situation and assess whether they, in themselves or together with other circumstances, require deviation from the policy rule.

Does this ruling actually mean a break in the trend?

The future will have to show whether this "break in trend" by the Division will actually bring about a substantial change. In any case, it cannot be denied that in administrative and legal practice this judgment will (have to) result in (much) more attention being paid to all the circumstances of the case. It is no longer sufficient for an administrative body to simply note that certain circumstances have been discounted in policy rules and for that reason alone cannot be special circumstances.

It is obvious that in public order law and enforcement law, this new line will be particularly prominent. These are areas of law par excellence where customization is appropriate. Decisions within these areas of law often have a strong and direct impact on the position of citizens. This may be different, for example, in the question of whether there is an entitlement to the granting of an environmental permit, the area of spatial planning. But in the future it will not be possible to simply ignore "discounted" circumstances in this type of decision either.

To be continued, no doubt.