Clarity on scope of legal penalty

It has been on everyone's mind for some time: does the fee sanction apply only to the zoning plan test or to all the work that must be done for an application related to a zoning plan that is too old? This question was answered by the Supreme Court in a ruling on Nov. 17: the fee penalty applies to all aspects to which the application related to the zoning plan must be assessed. The fee penalty also applies if the building plan requires a departure from the zoning plan that is too old.

Legessanction

An environmental permit application normally requires payment of fees. However, art. 3.1, fourth paragraph Wro regulates that the municipal administration may not collect fees for services related to a zoning plan that was adopted more than 10 years ago and on which it has not been explicitly decided to extend the term of this zoning plan by up to 10 years.

That penalty applies to construction activities, but also to other activities related to a zoning plan, such as construction and demolition work. The sanction, now better known as the fee sanction, is there to ensure that municipalities update zoning plans on time. After all, if they fail to do so, they lose money.

About two years ago, I described in this blog that municipalities have tried in various ways to weaken the fee sanction, for example, by giving only a discount (of, say, 10% or 25%) on the fees when applying for a site within a zoning plan that is too old. That discount would then be equal to that part of the work required to review the building plan against the zoning plan. The work for the review of other regulations (such as the Building Code) would then be charged. An example of such a discount can be found in (articles 2.3.1.1.4 and 2.3.2.2 of) the fees table of the fees ordinance of the municipality of Vlissingen.

It has long been questioned whether such a discount fits within the law.

Supreme Court rules, fee penalty faces entire review

The Supreme Court finally answered that question in its November 17, 2017 ruling (ECLI:NL:HR:2017:2877).

The Supreme Court ruled that the circumstance that the municipal authority had to carry out activities of a different nature as part of the processing of the application and had to apply different review frameworks in the process was of no significance in this regard. The entire application must be regarded as a service provided in connection with the zoning plan and the fee penalty therefore applies to the entire application. The application of a discount only for the zoning review is therefore not permitted.

This case additionally called into question whether an application for an environmental permit to deviate from the too-old zoning plan is also affected by the fee penalty. In fact, the requested building plan did not fit precisely within the old zoning plan, so one might question whether such an environmental permit is a service related to the zoning plan.

The Supreme Court ruled that the fee sanction also applies to an application for a Wabo project decision (Section 2.12(1)(a) and (3) Wabo). This ruling does not explicitly state that the fee sanction is also applicable to deviation from the zoning plan by means of the 'kruimelregeling' (Section 2.12(1)(a) and (2) of the Wabo), but given the broad wording used, this does seem to be the case.

Review date leg sanction

In the ruling, the Supreme Court also makes it clear that in order to determine whether the fee sanction is applicable, the time at which the application was actually considered (note: that is not necessarily the same time as the filing of the application, for example, if there is an incomplete application) must be considered.

This means that if a new zoning plan is adopted after the application is considered, but before the application is decided, the fee sanction will thus continue to apply.

Already irrevocable fee notes

An interesting question now is what to do with already irrevocable fee notes that are now found to be in violation of Section 3.1(4) of the Wro. The municipality in question has referred that question to the Supreme Court. However, that question will not be answered because it goes beyond this particular issue.

Conclusion

As a result of the Supreme Court ruling, it is now clear that:

1. The fee sanction covers any work that must be done to assess an application for an environmental permit for the activity of building or other activities related to the zoning plan that is too old;
2. The fee sanction also applies to a building plan requiring a departure from the too-old zoning plan;
3. What matters for the application of the fee penalty is the moment the application is considered, not the moment the application is decided.

Since many fee decrees (such as the Vlissingen fee decree mentioned above) still include the reduction described above, it can certainly not be excluded that incorrect fee bills will be imposed in the coming period. It is therefore highly advisable to take a critical look at the not yet irrevocable and yet-to-be-received fee notes in the coming period. Furthermore, the question is what is to be done with already irrevocable fee notes that now appear to be in obvious violation of Art. 3.1(4).

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