The government is tasked with ensuring compliance with laws and regulations and, where necessary, it can apply sanctions if these rules are not complied with. One of the possibilities that may exist in this regard is the imposition of an order for incremental penalty payments. In practice, it is not always easy for an administrative body to impose a proper and carefully substantiated order for incremental penalty payments. The Division's ruling of March 27, 2019(ECLI:NL:RVS:2019:941) demonstrates this once again.
What was going on?
These proceedings are about so-called "sneupersmarkten" (flea markets) in a DIY/garden center in Heerenveen. The municipality wants the owner to stop selling products during the flea markets, which are held regularly in three halls of the garden center and the construction market. According to the municipality, these sales violate the zoning plan.
It therefore imposed a penalty payment order, which reads:
This charge means that your client must (have) ceased the (sales) activities carried out on the merke in the North-South facing hall, the East-West facing hall and the entrance hall before February 1, 2017 and must (have) ceased from February 1, 2017. These spaces are shown in red on the attached floor plan."
The owner disagrees with this charge, believing that he should at least be allowed to sell products during these markets that he is also allowed to sell in his hardware store and garden center.
Requirements for order under penalty
If it has been determined that a zoning ordinance is being violated, the authority is, in principle, authorized to impose an order for incremental penalty payments. Of course, this order for incremental penalty payments must meet a number of requirements.
Thus, (among other things) the order under penalty must be recorded in writing, the violation must be mentioned with the violated regulation, an indication of the place and time when the violation was found must be included, and the remedial measures to be taken must be described, as well as the period within which the violation must be terminated.
As for the remedial measures to be taken, they should not go beyond what is necessary to end the violation. In other words, the remedial measures must not be too far-reaching.
Burden too far-reaching
Both the court and the Division agree with the owner of the garden center and the hardware store.
According to them, the imposed burden has the effect of making it impossible to use the north-south facing hall, the east-west facing hall and the entrance of the building for (sales) activities for the benefit of the merke, even if these activities - by adjusting the assortment - do not violate the zoning plan.
The conclusion is thus clear: the college imposed a charge beyond what is necessary to end the violation. Therefore, the decision does not stand.
Conclusion
Even if the existence of a power to impose an order for incremental penalty payments is not in dispute, it must always be critically examined whether the substance of the order also meets the legal requirements. If this is not the case, the Division will draw a line through such an enforcement decision, although there is legal authority to do so.
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