Enforcement issues come in many shapes and sizes. They often involve the question of whether or not an order for periodic penalty payments is justified and whether the content of the order imposed is correct. See a previous blog on this subject. But even if an order is rightly imposed, this does not mean that the collection of penalty payments is lawful.
A June 26, 2019 Department ruling is also worth noting. Lesson from this ruling (as simple as it may sound): If an order under penalty can not be violated (anymore), forfeiture and recovery are also not an issue.
What was going on?
In these proceedings, an environmental permit was requested for the conversion of an office space into 89 apartments on the first through sixteenth floors of an office building in Leiden.
The ruling shows that, in anticipation of permit issuance, renovation work had already begun. A building inspector subsequently came to inspect the property. He found that the apartments on the sixth through ninth floors had already been almost completed and that construction on the remaining floors had also begun.
It was also found that the apartments were now being advertised for rent by a rental agent.
Preventive penalty charge
In these circumstances, the college sees reason to impose a preventive penalty notice on the owner of the property, who is also the applicant for the environmental permit.
Such an order may be imposed if a danger of violation is evidently imminent. In other words, if a violation is likely to occur. That violation in this case consists of renting out the (converted) building for a residential function without a permit.
The college therefore orders that the property may not be placed in use for residential purposes until
- the requested environmental permit has been granted;
- its implementation has been reported ready and
- construction work has been skimmed.
If the property owner fails to comply with this order, a penalty of €75,000.00 will be forfeited.
New application, original application withdrawn
The ruling shows that the property owner, a few days after the preventive charge was imposed, filed a new application.
In consultation with the Leiden City Council's Environmental Permits Coordinator, he then withdrew the original application (on which the charge was based).
New surveillance audit leads to recovery of penalty payment
A few weeks later, the property is again visited by a supervisor. During the visit, the supervisor finds that two apartments are occupied, which findings are recorded by him in an observation report.
This means, according to the college, that the property owner has forfeited a penalty payment of €75,000.00.
Charge cannot be violated, penalty cannot be forfeited
The Division does not share the College's conclusion. In doing so, however, it does not follow the opinion of the court, which previously ruled that the supervisor's report had the necessary flaws with which the college had failed to prove the violation, according to the court.
The Division dismisses it with "simple" (legal) reasoning. Namely, the Division notes that after the revocation, it became permanently impossible for the property owner to comply with the burden. Reason: after all, the original application for the renovation was no longer there. And the order under penalty was linked to that.
According to the Division, it would have been up to the college to adjust the charge, in part because the revocation was "partly at the instigation" of the Environmental Permits Coordinator. However, that did not happen.
Simple conclusion of the Division: the moment the supervisor found that the apartments were occupied, the charge could no longer be violated. This is because the original application had already been withdrawn at that time. Forfeiture of penalties - and thus recovery - is therefore no longer an issue, according to the Division.
Conclusion
Even if an order for a penalty payment is rightly imposed, a subsequent recovery decision will always have to be judged keenly. The most important question is always: has an order been violated? If not, the Division will draw a line through the decision.
