Prior to the application for an environmental permit for construction, it can be very worthwhile to investigate whether it is wise to specify the construction costs yourself or to insist on the application of a specific norm sheet. This is because if the municipality has relied on the application of a norm sheet that has not been properly published and cannot be reverted to the self-declaration, no fees can be charged.
Level of construction costs relevant to fee assessment
Fees for an environmental permit for construction work are often based on construction costs. Fees ordinances regulate in various ways how those construction costs are determined. This can be done on the basis of the applicant's statement, but also on the basis of certain UAVs or norm sheets of the Netherlands Standardization Institute (NEN). In an earlier blog we already described case law in which it was ruled that when the standard sheet to be used has not been published in the correct manner, the fees regulation is (partly) non-binding and no fees assessment can be imposed.
The April 25, 2019 ruling shows that a dues ordinance is not declared ineffective if the specific dues assessment is not based on the standard sheet that was not properly disclosed. In that case, the construction costs may, however, simply be based on another basis, provided that the other method is also included in the definition of construction costs in the dues ordinance.
Own statement construction costs
In this case before the 's-Hertogenbosch Court of Appeal, the municipality thought it could get away with the incorrect disclosure by arguing that it based the construction costs on the applicant's own statement and therefore not on the norm sheet. This is an interesting position because many, but not all, fee regulations provide as a safety net that construction costs can also be based on the applicant's own statements. The incorrectly disclosed norm sheet is then unnecessary and one could then say - in line with the nuance described above - that the incorrect disclosure is not relevant because the self-declaration is used.
Alternative determination must be arranged
In this particular case, however, that was not true, because the fees ordinance did not provide that construction costs could be based on the self-declaration. In fact, the dues ordinance stated that construction costs could possibly be based on standard amounts, and the stated construction sum did not correspond to that.
Thus, in this case, no fee assessment could be imposed at all, even based on the self-declaration.
Save dues by doing homework
If you are planning to apply for a construction project, it can be very interesting to explore the possibility of minimizing, or even completely avoiding, the fees to be paid.
In previous blogs, we have provided tips on how to "strip down" the application, requiring fees to be paid only on the parts actually subject to planning permission.
Another wise lesson that can be drawn from the court's ruling is that it may be interesting to fill out the application in such a way that the fees have to be determined on the basis of a basis that is not included in the fees ordinance or has not been properly disclosed. Indeed, in that case, no fees can be charged.
In other words: In some cases, it may be wise not to self-report construction costs.
