Comparing apples to oranges? Successful reliance on principle of equality in enforcement action

An appeal to the principle of equality in legal proceedings almost never succeeds. There are often small nuances to be found that make cases not seen as equal by a judge. All the more interesting, then, is the Division's March 6, 2019 ruling in which this appeal does succeed.

What was going on?

In these proceedings, a plot of land in Kesteren was being used for roadside fruit sales. This was not permitted under the zoning plan, nor had a permit been granted for the fruit stall in question. The municipality of Neder-Betuwe had therefore imposed an order under penalty. The sale must be stopped and must remain stopped.

The fruit stable owner disagrees, and objection, appeal and appeal proceedings follow.

Tolerance policy 

Fruit stands are common in the municipality of Neder-Betuwe. In many zoning plans this is explicitly allowed and for other situations the municipality uses the policy "tolerance criteria fruit stalls". This policy states that the municipality does not take enforcement action against the occasional sale of fruit from an orchard or production area, when this takes place in a good and orderly manner and when certain conditions are met.

Thus, only fruit produced on the same plot may be sold. The sale of fruit from elsewhere or other (related) products such as juice and jam is not allowed. Also, sales may only take place during the harvest season of the fruit in question. Finally, the location must not be unsafe for traffic and parking must take place in the orchard and only on one's own plot.

Conditions not met

The fruit farm owner's plot is zoned "Traffic". There are fruit trees on the plot, but most of the fruit sold comes from the fruit farm of the fruit farm owner on a nearby plot. The fruit farm owner thus did not comply with the conditions of the tolerance policy.

Principle duty of enforcement

When a statutory provision is violated, the municipality is authorized to take enforcement action, for example, by imposing an order under penalty. Because of the public interest served by enforcement, the municipality is in principle also obliged to do so. Only under special circumstances can the municipality be required to refrain from taking enforcement action. The fruit store owner believes that special circumstances exist in this case.

The fruit stable owner believes that the municipality should have refrained from taking enforcement action because he can invoke the principle of equality. This is because there are more plots of land in the municipality with non-agricultural uses on which fruit is sold, but the municipality is only taking action against his fruit stable. According to him, this is not possible. The municipality should treat him the same as the other fruit stable owners. After all, equal cases should be treated equally.

Equality principle: equal cases?

However, according to the municipality, these are not equal cases. Equal cases can only be situations, which involve the same zoning plan and land with the same destination. This was not the case. The court followed this position of the municipality and ruled that the municipality was justified in taking enforcement action against the fruit stable owner.

On appeal, the Division puts a clear line through this judgment of the district court. The mere circumstance that the fruit stable owner's plot has a different zoning and is located in a different zoning plan does not render the appeal to the principle of equality unsuccessful. After all, the municipality's tolerance policy is not limited to a particular zoning plan. It applies to the entire municipality.

Since fruit is sold at at least three other locations in the municipality in violation of the zoning plan and the conditions of the tolerance policy are not met, the municipality did not properly justify its decision to take enforcement action against the sales activities on the fruit stable owner's plot, according to the Division. The Division therefore annuls the court's ruling and the municipality's decision on the objection.

Conclusion

A municipality has a lot of freedom in making decisions, but it is clear from this ruling that it must give good reasons for its decisions. Randomness is not allowed. Without good reasoning, not much remains of a municipal decision at the Division.