Equality principle breaks hospitality policy

The principle of equality is one of the most imaginative legal principles. However, reliance on the principle of equality rarely succeeds, as there must be equal cases. Thus, a comparable case is not enough. An appeal to the principle of equality is often made in the event of enforcement action (why am I not allowed to sell fruit on the road and others are (AbRS 6 March 2019, ECLI:NL:RVS:2019:694)) but may also be at issue in the case of the granting of a permit (why am I not granted a permit and he is?). In a decision by the Council of State on May 1, 2019 (ECLI:NL:RVS:2019:1418), an appeal to the principle of equality was honored in such a case, even though it would conflict with prevailing policy. What was going on?

New hospitality industry on Jan Pieter Heijestraat

Kess Corporation NV (Kess) intends to use a building on the Jan Pieter Heijestraat in Amsterdam for catering. However, the Oud-West zoning plan stipulates that a use for the catering industry is not permitted. In order to make catering establishments possible, it is necessary to deviate from the zoning plan. Because it concerns the use of an existing building, it is a so-called "minor case" (art. 4 part 9 Annex II Bor), so that an environmental permit can be granted relatively easily.

In assessing the application, the college also considers the 2011 City of West district hospitality policy. This policy states that a maximum of two catering destinations per building block is allowed. Because two other buildings in this block on Jan Pieters Heijestraat already have a catering destination and granting Kess's application would mean adding a third, it has been rejected. However, Kess argues that there are six building blocks on Jan Pieter Heijestraat alone, each with three or even more properties with a catering destination. By not also allowing a third catering establishment here, the college is acting in violation of the principle of equality, according to Kess.

Assessment court incomplete

The court rejected the reliance on the principle of equality because one of the examples cited by Kess would involve supportive catering - not an equal case. The court ignored the other cases cited by Kess. Thus, the Division is still addressing them.

Unequal treatment in equal cases

Although the Board argues that some of the catering establishments mentioned by Kess are not equal, for example, because in one case there is the destination "catering food", there are so many other catering establishments that there are still several building blocks with three or more catering establishments. The Division therefore expressly gave the college the opportunity to address Kess' alleged violation of the principle of equality, but the college did not take advantage of that opportunity. Nor did the Municipal Executive appear at the hearing. Thus, the Division ruled that the Municipal Executive did not provide sufficient reasons for not granting Kess an environmental permit for a third catering establishment, even though this would be contrary to the Catering Memorandum.

Conclusion: equality principle not a wash and can break policy

First, this ruling illustrates that an appeal to the principle of equality can still have a chance of success today. However, it will have to be well substantiated that there are in fact equal cases, and it obviously helps that a college makes little effort to refute this. Second, the ruling shows that the principle of equality may require deviating from current policy.

It remains to be seen whether this will happen in this case. It concerns an interlocutory judgment and the Municipal Executive - despite having been given the opportunity to do so earlier - has been ordered to motivate why there is no violation of the equality principle or to take a new decision. As far as I am concerned, the Division should have already definitively cut the knot, so that the violation of the principle of equality must be assumed in the new decision.

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