A decision to revoke an environmental permit for construction can be objected to and appealed. However, it is important to already present all relevant documents in support of your position at the objection stage. On appeal, it is often too late. This is evident from a ruling by the Administrative Law Division of the Council of State dated June 5, 2019 2019(ECLI:NL:RVS:2019:1825).
What was going on?
In 2007 the appellant was granted an environmental permit for construction, then under the heading of building permit. In 2010, the Municipal Executive revoked the environmental permit for the first time. In 2011, following a condition in the decision on objection, construction resumed. At that time, a basement basin with an underpinned wide slab floor was constructed on the plot. As of 2012, construction has been at a standstill for many years, so the college again announced an intention to revoke the environmental permit.
During a viewpoint meeting in early 2017, the appellant indicated that he had arranged the necessary financing and a contractor for construction. Nevertheless, on April 11, 2017, the college subsequently revoked the environmental permit because no construction work had taken place for at least 26 weeks during the period from April 8, 2016 to January 9, 2017. The college did not consider it likely that construction work would resume in the near future and that the planned residential building would be realized.
The college upheld the revocation decision by its decision on objection, which appellant appealed. This ruling concerns the appeal from the district court ruling.
Withdrawal of environmental permit for construction
The college was able to revoke the building permit because no actions were taken using this permit for 26 weeks. This follows from Section 2.33 of the Environmental Law (General Provisions) Act (Wabo).
In this ruling, the Division repeats its earlier consideration that when deciding on the revocation of an environmental permit, all interests to be taken into account must be involved and weighed against each other. The (financial) interests of the permit holder may also be taken into account. Consideration may be given to whether the failure to make timely use of the permit is attributable to the permit holder.
The mere circumstance that the permit holder is unable to make a plausible case that he will still use the permit within a short period of time is sufficient, according to the Division, to justify the revocation of the permit.
Submit documents during objection phase, on appeal is too late!
In assessing whether the college should have been allowed to revoke the environmental permit, it must be considered whether the college was entitled to assume in its decision on the objection that the appellant would not start and complete construction work within a short period of time.
Appellant tried several ways on appeal to substantiate that it was plausible that construction work would resume in the near future. He sought to introduce documents to the court and to have witnesses heard. The court did not accept either.
The appellant disagreed. He argues on appeal that it was unclear to him at the objection stage that he should have submitted these documents at the time. The college should have asked him for the documents and pointed out the consequences of not submitting them on time. Moreover, the witnesses should have been heard because they could testify about more facts than just the facts after the decision on the objection.
The Division is of the opinion that it could have been sufficiently clear to the appellant that he could and should have submitted the documents as early as the objection stage. The fact that he was not assisted by a lawyer at the time does not alter this. Correspondence from the college even shows that he was explicitly asked to submit documents in support of his contentions. The district court further correctly ruled that the witness statements would not be relevant to answering the question of whether the college was entitled to assume in its decision on the objection that the appellant would not start and complete construction in the near future.
Therefore, according to the Division, at the time of the decision on objection, the Appellant did not make a plausible case that he would proceed with the construction work and construct the residential building in the near future. Indeed, he did not put forward any documents in support of his contentions at the moment suprême, at the objection stage. The college was also allowed to take into account that the construction work in the past 10 years has not really taken off.
Conclusion
This ruling shows that it is very important to provide enough documentation at the objection stage of a withdrawal decision to substantiate that construction work will resume in the near future. The moment of the decision on objection counts, after that it is too late!
