Changing policies during permit process, you can't just do that!

With some frequency, municipal policies are changed after an application for a permit has been submitted. This often leads to an applicant's frustration. In some cases a change is positive, but in the majority of cases the amended policy actually stands in the way of granting a permit.

The fact that an administrative body can unilaterally change "the rules of the game" during a procedure may sound strange, but has now been accepted with some regularity by the Administrative Law Division of the Council of State (further: the Division).

A ruling by the Division on December 12, 2018(ECLI:NL:RVS:2018:4045) shows that this kite does not always fly, however. Indeed, it follows from this ruling that if a court indicates that certain policy rules must be reviewed, an administrative body is no longer allowed (just like that) to unilaterally change the rules of the game.

What was going on?

These proceedings concern an environmental permit already applied for in 2014 by Zicob Vastgoed B.V. to allow a hotel function on a number of plots of land in Amsterdam. It is perfectly clear that Amsterdam does not want an expansion of the number of hotels (anymore), which is why it refuses the permit.

Zicob Vastgoed B.V. lodged an objection to that decision. That objection is declared unfounded. However, in subsequent proceedings before the court and the Division, it is found that the municipal policy 'Regional Hotel Strategy 2016-2022' was evidently misapplied in assessing the application. In its ruling of May 31, 2017(ECLI:NL:RVS:2017:1434), the Division orders that (now properly applying the policy) Zicob Vastgoed's objection be re-decided.

New policy

During the proceedings before the Department, new policies were adopted. This "Overnight Accommodation Policy" came into force on January 1, 2017 and replaces the Amsterdam part of the Regional Hotel Strategy. Thus, a decision on objection should be made after new policies have come into effect in the municipality.

The basic principle is that a decision on an objection must be tested against the law, the facts and circumstances and the policy rules that apply at that time. The new decision on Zicob Vastgoed B.V.'s objection is therefore tested against the Overnight Policy. According to the General Board, Zicob Vastgoed B.V.'s application does not fit into this new policy and the permit is again denied. Zicob Vastgoed B.V. again disagrees with this refusal and again lodges a (direct) appeal with the Division.

Department: basically review for new policy unless a judge rules otherwise

The Division's ruling is brief. In doing so, the Division first reiterates its main rule that when making a decision on an objection, the law and policy rules must be applied as they apply at the time. So that would mean that the Overnight Policy was rightly reviewed and the refusal decision was rightly made.

However, the Division does not think so. It indicates that its May 31, 2017 ruling was clear. It considers:

that the General Board (...) should still carefully examine, on the basis of the Hotel Strategy, whether it can grant cooperation to the hotel function desired by Zicob Vastgoed. To the extent that the general board upholds the refusal and does not as yet proceed to grant the requested permit, it may not do so without clearly
and properly addressed the court's extensive and critical considerations regarding the review of the hotel ladder contained in the Hotel Strategy.

The Division states that the administrative body could not ignore this explicit order of the Division. The Division also notes that this is all the more true now that the Overnight Policy aims to (even) further limit the possibilities for hotel development compared to the Hotel Strategy.

Conclusion: ask the court for the review framework

An important lesson can be drawn from this ruling. If in (higher) appeal proceedings it is argued that a manifestly incorrect review of the municipal policy has taken place (your application does, in fact, fit into that policy), urge the court to stipulate in its ruling that an administrative body must make a new decision on your objection, using that specific policy as a framework for review.

After all, the starting point remains that decisions must be made in accordance with policy rules. Rules of the game cannot be changed (just like that) in the course of legal proceedings.