In a September 5, 2018 ruling, the Division ruled that even if the college has agreed to a completion notice, this does not mean that construction has taken place in accordance with the environmental permit. Therefore, in this particular case, the owner of the plots must still be given notice to remove or relocate air conditioners placed on the roof in violation of the environmental permit.
Building in accordance with environmental permit
The ruling of September 5, 2018 (ECLI:NL:RVS:2018:2911) involved the following. Local residents had asked the Municipal Executive of the Municipality of Utrecht to take enforcement action against a number of air conditioners on the roof. These had been placed elsewhere than for which an environmental permit had been granted. The drawings accompanying the permit indicated that two longitudinal parallel rows of five air conditioners each would be placed on the roof. The size of those air conditioners did not appear from the accompanying drawing. However, the air conditioners were then placed not in two parallel rows of five, but at different locations on the roof. The location of those air conditioners therefore violated the environmental permit granted, according to the local residents.
Ready notification
The college countered that an inspection was conducted after the notification of completion and the building inspector agreed. In doing so, the college apparently intended to argue that therefore enforcement action could no longer be taken.
The Division ruled that the inspection and the consent to the notification of completion do not have a legalizing effect with regard to the deviation from the environmental permit. According to the Division, the consent to the notification of completion of the construction work does not go beyond indicating that there are no objections to putting the renovated part of the building to use. Therefore, the notification of completion cannot stand in the way of any possibilities for the college to take enforcement action against building in deviation of an environmental permit.
Principle duty to enforce
Since the environmental permit also had not been subsequently amended, for example by submission of an amended construction drawing, the Division ruled that in principle the college must act against the air conditioners installed in deviation from the environmental permit.
Balance of interests and concrete prospect of legalization
Because the Municipal Executive had already weighed up the interests at stake in its decision not to take enforcement action and had checked whether there was any prospect of legalization, the Division also addressed this in its ruling. The Division found that the contested decision did not take into account all the interests to be considered and then concluded that there were no special circumstances that necessitated refraining from enforcement.
Consent building inspector does not legalize
This case clearly shows that even if the building inspector has approved the notification of completion, this does not mean that the structure has been built in accordance with the environmental permit. Thus, this leaves an enforcement risk. If that enforcement risk were to materialize, it could perhaps be resolved by submitting an application and thereby modifying the licensed building plan, especially in the case of modifications to which there are no substantive objections.
