It is by now well known that standards sheets must be made available for inspection when a dues ordinance is published. Following an earlier decision of the Court of Appeal of 's-Hertogenbosch, the Amsterdam Court of Appeal ruled that in the absence of these norm sheets being made available for inspection, no administrative fees assessment could be imposed based on the construction costs stated by the applicant.
Publication of norm sheets accompanying dues ordinance
With the judgment of June 21, 2019, the Supreme Court explained that the Municipalities Act requires that norm sheets to be used in the dues ordinance must be properly made available for inspection upon publication of the dues ordinance. This can be done, for example, by making them available for inspection at the town hall, but in general, the cognizability requirements are also met if a tax ordinance refers to a text published in the Government Gazette for such regulations, and the tax ordinance lists the correct, complete title of that text, as well as the year and number of publication in the Government Gazette. If a norm sheet has not been properly published, the tax ordinance is ineffective for that part.
Lege assessment based on self-declaration
But what if there was no proper submission of a standards sheet, but the assessment can be based on the construction costs provided by the applicant? This question was before the Noord-Holland District Court and the Amsterdam Court of Appeal.
The relevant dues ordinance required that the dues be levied based on the construction sum as referred to in the UAV 1989 or, in the absence of such a sum, based on a cost estimate in accordance with NEN 2631. In this particular case, the construction fees were based on the construction costs provided by the applicant.
The court then ruled that it is then irrelevant whether the NEN standard was properly disclosed. Regarding the UAV 1989, the court ruled that it had been correctly disclosed. Thus, according to the court, the fee assessment could be imposed.
UAV not properly publicized
The court thought otherwise. No longer at issue before the court is whether the NEN standard was properly disclosed.
With regard to the UAV 1989, the Court of Appeal, unlike the District Court, held that the UAV had not been properly publicized because the UAV 1989 had not been published in the Government Gazette. According to the Court of Appeal, the announcement in the Government Gazette that the UAV 1989 have been adopted, are available for inspection at the Ministry of Housing, Spatial Planning and the Environment, and can be ordered from a publisher, does not meet the publicity requirements. This makes the Fees Ordinance non-binding insofar as it states that the tax measure is the contract price as referred to in UAV 1989.
No fee assessment based on self-declaration
The levy officer countered that this is irrelevant to a levy assessment that is based on the construction costs reported by the permit applicant.
The court rules that this does not matter. The court stated first that the tax debtor must be able to derive the extent of his tax debt from ordinances that meet the knowability requirements. If this is not the case, then the legal basis for the levy is lacking.
Generally applicable?
In this case, the fee assessments could not stand. It cannot be ruled out, however, that other cases may rule differently. After all, in this case the tax measure in the fees ordinance was always linked in some way to a norm sheet and the own statement was (apparently) not explicitly included as an independent measure. I can imagine the court ruling differently if the fees ordinance explicitly included that the self-declaration could also be a measure of fees. An earlier judgment of the Court of Appeal of 's-Hertogenbosch also seems to offer room for this.
Consider statement of construction costs when submitting application
In practice, it is important to determine in advance whether it is advisable to provide construction costs yourself or to rely on an estimate of construction costs. If the norm sheets on which the estimate should be based have not been properly disclosed, no estimate can be made and the situation could arise that no fees can be imposed at all.
In previous blogs we gave tips on what an applicant himself can do to avoid an unnecessarily high fee assessment. For example, by not including finishes not relevant to the assessment on the drawings in the application.
With this tool, you can find out for yourself by answering some questions whether there is reason to object to your fee assessment.
