Letter from random official prevents environmental permit by operation of law

Companies looking for a new location and encountering conflicts with the zoning plan turn to the municipality to ask whether it might be possible to deviate from that zoning plan. This can take the form of a specific application, as was the case in the December 20, 2017 Administrative Law Division ruling. The case was energetically taken up by the Head of Economic Affairs, and within three weeks the applicant received a letter back from him, stating that the municipal zoning policy prevented cooperation with the request, but that he was happy to cooperate in the search for alternative business locations. The mayor and aldermen sent the applicant a letter only a few months later stating that it had been decided not to grant planning cooperation for the requested location. The company then took the position that a permit had now arisen by operation of law, since a decision on the application had not been made in time.

Unauthorized, not on behalf of college and no remedies clause but still a decision

Ongoing proceedings in this regard established that the Head of Economic Affairs was not authorized to decide on the application. Moreover, the letter from the Head of Economic Affairs did not mention that a decision had been made on behalf of the mayor and aldermen, nor did it have a remedies clause. In other words, it could be argued that the Head of Economic Affairs acted on his own regarding the application.

Despite the given circumstances, the Division concludes that the letter from the Head of Economic Affairs must be qualified as a decision within the meaning of Article 1:3 first paragraph of the Awb. According to the Division, the Head of Economic Affairs rejected the company's application for an environmental permit by making a textually concrete and unambiguous decision on the request. In this regard, the Division explains that the question whether an act is intended to have a legal effect and whether or not it is a decision must be distinguished from the question whether the person who performed the act intended to have a legal effect was authorized to make that decision on behalf of an administrative body.

The legal effect and unauthorized decision-making

According to the Division, the decision of the Head of Economic Affairs had legal effect because it was concrete and unambiguous. The (competence) deficiencies attached to the decision therefore did not detract from the decision character of the letter, according to the Division. Moreover, the defects could still be corrected.

Repairing the defect after the decision period

The proceedings continued pending the appeal, with the College correcting the jurisdictional defect in the decision on the objection. It was argued by the company that it follows from the nature of the regulation of the lex silencio positivo, which sets a fatal decision period, that such a defect cannot be remedied after that decision period has expired. That argument was rejected. After all, according to the Division, there was indeed a decision and there is no ground for the opinion that the regulation lex silencio positivo precludes rectification of the defect.

Surely this ruling gives material food for thought: an official rejection "bumps up" the legal system of the environmental permit by operation of law.

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