If it is established in proceedings before the Division that a decision by an administrative body is unlawful, the administrative body will generally be ordered to pay the costs of the proceedings. At least, this was the prevailing line in the case law of the Division. In its April 4 ruling, however, the Division took a new approach, in line with the case law of the other highest administrative courts.
No longer the legality of the decision determines who is ordered to pay legal costs, but rather the success of the legal remedy. Anyone who successfully lodges an (appeal) against a decision, even if that decision is lawful, will from now on still be entitled to reimbursement of legal costs.
Process
In this case, an environmental permit had been granted to a pig farmer for, among other things, the construction of a number of stalls. A local resident disagreed and requested the college to revoke the granted permit. The college rejected this request, after which the case went to court.
The court considers that it is not plausible that the permit will be used in the foreseeable future, so it sets aside the college's decision rejecting the request and orders the college to make a new decision. The college then revokes the environmental permit.
The court's ruling has the effect of depriving the permit holder of her permit, so she decides to appeal to the Division.
Who pays the litigation costs?
The Division ruled in favor of the permit holder: the college could reasonably decide not to revoke the environmental permit. The judgment of the court, which held that revocation of the permit was mandatory and annulled the decision of the Municipal Executive, therefore does not stand. Permit holder can therefore still use its permit.
Yet one question remains, to which the Division devotes an extensive consideration. Do both parties bear their own legal costs, or should the administrative body be ordered to pay the costs? After all, here it is the court that has ruled incorrectly, both parties have done nothing wrong. Previously, in similar cases, the Division saw no reason for an order for costs of proceedings, as shown, for example, in a ruling less than three weeks ago (ECLI:NL:RVS:2018:885). Now, however, it is ruling differently.
From now on, the Division will align itself with the other highest administrative courts and consider, for the sake of legal unity, that in order to order an administrative body to pay the costs of the proceedings, it is no longer about the lawfulness of the decision, but about the success of the appeal. The rationale behind this is that it is not considered reasonable that the person who has appealed and has been proven right should still have to pay his own legal costs.
Specifically, this new line means that if the appeal succeeds, an administrative body will still be ordered to pay the costs of the proceedings even though it has made a lawful decision, as the College did here. In effect, therefore, the administrative body will pay for the court's mistakes. On the other hand, the licensee in this case does not have to pay legal costs, whereas she would have had to do so before.
Finally, the Division considers that if the legislator considers this situation undesirable, it is up to it to amend the law. After all, at present it is only possible to order one of the parties to pay the costs of the proceedings and not the State, which in the guise of the District Court has made a wrong decision here.
Conclusion
If the court makes mistakes in its ruling, from now on the administrative body will pay the costs of the appeal. This means on the one hand only news for administrative bodies, but on the other hand it does justice to the person who successfully appeals.
