On June 21, 2017, the Administrative Law Division of the Council of State (further: the Division) issued an interesting ruling on how municipal authorities should act when there is doubt about whether someone intended to file an objection.
That question is important in assessing whether a remedy has been exercised in time. After all, if that is not the case, a permit is irrevocable.
Excerpt 'Ladies Night'
This ruling (ECLI:NL:RVS:2017:1638) concerns an event permit granted for a 'Ladies Night' at Lounge Café De Pacha in Schiedam. This was a private evening with male strippers.
The owner of the café thinks the conditions in the permit are too strict. She does not agree that the city council has set as a condition that strippers must wear briefs or thongs. She had also made this clear in an earlier permit process. She was proven wrong in the objection procedure and the court appeal.
Is an objection also an appeal?
At issue before the Division is whether the owner of the café, in sending a letter to the mayor, filed a timely notice of objection. There may be - and this is confirmed by the Division - (strong) doubt as to whether the owner's letter should be considered a notice of objection.
Indeed, on the one hand, it can be inferred from the text of the letter that, at the time of its writing, the owner was not yet aware of the decision on her application, to which the condition was attached. On the other hand, the letter was received after the decision on the application had been sent. Moreover, in the letter, the owner presented a number of arguments to persuade the mayor to grant the requested permit without a requirement about the striptease act. Apparently, the two letters crossed paths.
Department: give petitioner the benefit of the doubt if there is doubt about an objection
In this ruling, the Division clearly indicates how the municipal government should act when there is doubt about the "nature" of a letter.
In this case, it had previously become clear to the mayor that the owner had problems with one of the permit regulations. The Division indicates that in such a case, from the point of view of due diligence, the municipal authority is obliged to get a definitive answer about the "nature" of a letter. It cannot simply be assumed that there is no question of an objection. Since - in this case - the mayor also failed to contact the owner to obtain the necessary clarification, he should have given the owner the benefit of the doubt and marked her letter as a (timely) notice of objection.
Thus, the ruling teaches that the city council must at all times be clear about the "nature" of a letter sent to it. If in doubt, it should simply inquire about it. This applies not only to possible objections to an event permit, but obviously to all decisions that can be objected to.
Incidentally, this does not yet answer the question of whether the "chastity condition" to the permit could be prohibited. The mayor must now make a substantive decision on this. The woman can then appeal that decision directly to the Division.
