A ruling(ECLI:NL:RVS:2017:1997) of July 26, 2017 by the Administrative Law Division of the Council of State (further: the Division) shows once again that there is almost never an "obvious private law obstacle" that should lead to the denial of a permit application.
It seems to follow from this ruling that even if it is clear that a required private law consent is not given, this should still not lead to the assumption of an obvious private law obstacle until a civil court has ruled on it.
What was going on?
These proceedings concern a granted environmental permit for the expansion of a dental practice in Arnhem. An adjoining childcare center has entered a defense against this permit. Both premises are part of one Owners' Association (VVE).
Pursuant to a subdivision deed of this association, any additions to, or substructures are prohibited without the approval of a two-thirds majority of the meeting. The children's association has a majority interest in this meeting and has made it known from the outset that it cannot consent to the expansion of the dental office. A meeting of the VVE also decided that permission for the expansion would not be granted. However, the permit had already been granted at the time of the VVE decision and the objection procedure had also been completed.
The issue before the court and the Division was whether, because of the knowledge that the VVE would not consent to the expansion, the college should have denied the permit.
(Evident) private law obstacle: should the permit have been denied?
The court found that the permit should be denied and proceeded to do so - self-sufficiently. In the court's opinion, a private law impediment to granting the environmental permit existed, as it was fully clear at that time that the necessary consent of the assembly would not be granted, given the majority interest of the child care center in the assembly. The fact that the actual decision to refuse consent was not taken by the VVE until after the objection procedure did not alter this, according to the court.
The Division thinks otherwise. It points to its established case law. This implies that a private-law impediment only stands in the way of the granting of an environmental permit if this impediment is evident in nature. After all, according to the Division, the civil judge is the first person to answer the question of whether a private law impediment prevents an activity.
The Division finds - unlike the court - that there is no sufficient "obviousness. Remarkably, it agrees with the court that at the time the permit was granted it was sufficiently clear that the VVE would not consent. But that, according to the Division, is insufficient to be allowed to refuse. Indeed, the Division argues that the dental practice can raise the VVE's refusal to consent with the civil court and could have possibly obtained a substitute consent from the civil court.
So it seems to follow from this ruling that the Division believes that there can never be an "obvious private law impediment" if private law consent is required until a civil court has ruled on it.
