New Division line on permit by operation of law sets aside court rulings

That the Division is done with "shadowy" applications that can lead to a permit by operation of law we previously noted in this article. On March 20, 2019, the Division subsequently set a new line of jurisprudence. In two rulings on April 17, 2019, we now see how that line of jurisprudence plays out in concrete terms.

New line: independent document containing obvious application for environmental permit

In another ruling on Feb. 20, 2013, the Division ruled that it is possible to include a request for an environmental permit in an objection. Provided the request to do so is "unequivocal and unambiguous.

That possibility disappeared for good with the March 20, 2019 ruling. As of March 20, 2019, the Division rules that a request for an environmental permit, which is not made via the Environment Counter or an application form, is only an application if it is immediately clear that an application has been made. In doing so, the Division imposes the duty that it must always be a fully independent document. Only in the case of such an obvious application can an environmental permit still be obtained by operation of law.

Request for permit for permanent residence garden house in objection

In the April 17, 2019 ruling, the Division must decide whether a permit arose by operation of law for permanent occupancy in a garden shed at an allotment complex in The Hague.

In these proceedings, the college found that the gazebo, in violation of the zoning plan, was being permanently occupied. The college therefore imposed an order for a penalty payment. The notice of objection to the order under penalty is explicitly requesting that an environmental permit be granted for the permanent habitation. In doing so, the objector even specifically named the appropriate legal regulation for this purpose.

In line with the Division's February 20, 2013 ruling, the court ruled in these proceedings that a permit was granted by operation of law. This is because the college did not make a timely decision on this "unequivocal and unambiguous" request for an application for an environmental permit.

On appeal, the Division quickly finished judgment of the district court. The Division indicates that with its March 20, 2019 ruling, a new line has been taken. An application for an environmental permit can only be made in a fully independent piece. Here, that is not the case. The request is contained in a notice of objection. That is not an independent document and already for that reason cannot be an application for an environmental permit. The judgment of the court is therefore set aside.

Retail environmental permit request in view

In another ruling on April 17, 2019, the Division must decide whether a permit by operation of law arose for the sale of bakery products by Bonjour Deli Plaza, a lunchroom and pastry stand, in Bodegraven.

In these proceedings, the college found that, in violation of a previously granted permit and the zoning plan, flans were also being sold on site. The college therefore sent Bonjour Deli Plaza an intention to impose an order for a penalty payment. Bonjour Deli Plaza then sends the college an opinion against this intention, explicitly requesting that an environmental permit be granted for the observed violation.

When the matter subsequently comes before the court, the court again rules in line with the Division's February 20, 2013 ruling. In the view, an unequivocal and unambiguous request was made to the college to grant an environmental permit. Since the college did not decide on this in a timely manner, the court ruled that a permit was granted by operation of law.

The Division also puts a line through this judgment with few words. Again, the Division simply refers to its March 20, 2019 ruling and notes that the request for an environmental permit was not made in a separate letter, but in a view. Again, this mere fact is sufficient for the Division to rule that no permit arose by operation of law.

Conclusion

The Division's new direction is clear. A permit by operation of law can only be at issue if (I) the application for it is made in a fully independent document and (II) it is immediately clear to the administrative body that an environmental permit is being requested.

Since the Department's new line is recent, more court decisions are expected to share the same fate.

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