In administrative law, much depends on the (timely) publication of decisions. Delays in publication can therefore have major consequences, for example if a decision is made too late as a result. Many decisions are announced by mail and it is not common for administrative bodies to send all such letters by registered mail. In that case, it is up to the administrative body to make it plausible that the decision was actually sent. A decision of the Division of 21 March 2018(ECLI:NL:RVS:2018:958) shows that it is not so easy for an administrative body to prove that a decision was actually sent on a specific date.
Order for litigation costs due to late mailing
The March 21, 2018 ruling involves the following issue.
An appellant sued the municipality for failing to make a timely decision on his appeal.
On March 18, within the deadline in the notice of default, the administrative body still decided on the appellant's objection. However, that decision did not reach the appellant until April 11, 2016. By then, the appellant had filed an appeal for failure to timely decide his objection. That appeal was subsequently declared inadmissible by the court, as there had since been a decision on the objection. However, the court did order the municipality to reimburse the appellant for the legal costs incurred and court fees paid. The municipality did not agree with this order and lodged an (incidental) appeal. The Division is therefore faced with the question of whether it should be the Municipality's responsibility that the appellant had already lodged an appeal. The answer to that question depends on whether the municipality actually sent its decision on March 18.
Proof of shipment
The Division explained in the ruling that in the case of non-registered sending of a decision, it is up to the administrative body to make it plausible that the decision was sent. The circumstance that documents sent by mail are generally delivered to the addressee's address stated thereon justifies the presumption of receipt of the decision or other relevant documents at that address. This entails that, in the first instance, it is sufficient for the administrative body to make a plausible case of dispatch to the correct address. For this purpose, it is in any case required that the decision is correctly addressed and provided with a mailing date and that there is a clear mailing record. If the administrative body has made sending to the correct address plausible, it is up to the addressee to refute this presumption.
Date stamp and case system
In this case, the specific letter was date-stamped when sent (internally) to the mailroom in the legal department and then scanned and placed in the digital case file. In that case system, behind the decision was the mailing date "18-03-2016.
The Division finds none of this sufficient to assume that the letter was actually sent on March 18 (and thus on time). The date stamp and the registration would have shown that the letter left the legal department of the municipality, but it has not yet been shown that the letter actually left the municipality hall on that day via the mailroom and was sent to the postal address of the agent. Because the place where the actual outward transmission takes place, in this case the mailroom, did not record the dispatch to the attorney's mailing address, the college had not made a plausible case that the decision was sent within the time limit of the notice of default. The Division therefore finds that the municipality was rightly ordered to pay the appellant's legal costs for his now-filed appeal.
Permit by operation of law?
The Division ruled earlier(ECLI:NL:RVS:2015:1657) that in order to prevent a permit from being granted by operation of law, it is necessary that (1) a real decision is made within the time limit and (2) that decision must have been published within that time limit. Late publication, for example because something went wrong in the mailing, could therefore result in a permit being granted by operation of law.
So in such cases, check whether the municipality can prove that the letter was actually sent on time. Look beyond the date stamp! In fact, a date stamp and case record from the substantive department is not simply sufficient. The Department requires that a mail registration be kept at the place where the mail actually leaves the town hall.
