Irrevocable for as long as it takes: revocation of environmental permits

Pan Beer

In construction, it is traditional to drink pan beer after reaching the highest point. Less visible, but at least as important, is the moment when the environmental permit for a construction project becomes irrevocable. Whether that is after lengthy procedures or after the unused objection period has expired. An irrevocable environmental permit is one of the highest achievable goals in administrative law.

Revoke environmental permit

Nevertheless, as the holder of an irrevocable environmental permit, you cannot rest on your laurels for too long. This is because the Wabo offers the competent authority (usually the Municipal Executive (the College)) the possibility of revoking an environmental permit (art. 2.33). An innocent reason for this is if the permit holder requests it. Less innocent is the possibility of revoking the permit if it has not been used for too long. For an environmental permit for building, that power arises as early as six months after it becomes irrevocable. However, this does not mean that the college can revoke environmental permits "just like that," the Council of State confirmed in a June 17, 2020 ruling.

Balance of interests

The premise of an environmental permit for construction, is that it is valid indefinitely. However, the college may come to changed planning insights that, on second thought, make the building plan undesirable. Also, a local resident may be disturbed by a licensed plan. If a permit holder then fails to use the permit for a long time, the college may decide to revoke it. Several municipalities have formulated policy in this regard, to which the board is in principle bound. In any case, the (financial) interests of the permit holder must be taken into account. It follows from this ruling that - fortunately - this cannot be taken lightly.

Withdrawal and construction halt in Laren

The June 17, 2020 ruling involved the revocation of a permit granted to Voxer for an apartment complex in Laren, NH,[1]. In the opinion of the college, Voxer had not used it for too long. Nor was it likely that it would do so in the near future. Because Voxer resumed work shortly after the withdrawal, the college also imposed a construction stop. Voxer had to cease and desist all construction work on the parcel under penalty of a one-time penalty of €50,000.

Voxer's building plan was first licensed in 2009. In 2015, Voxer was granted an environmental permit for the modified construction plan. In early 2016, the contractor began construction work by constructing a ramp to the future parking basement. The next work - the construction of the basement deck - took place only a year later in the summer of 2017, after which construction was halted (again) for more than six months. Since construction had already stopped for more than six months on several occasions, the college was authorized to that extent to revoke the permits by decision dated February 27, 2018[2].

The building plan in Laren showing the ramp and basement (source: Google Maps).

Voxer, of course, disagreed. True, construction was at a standstill for some time, but that was not its fault. Indeed, after the basement was completed, the contractor hired by Voxer had informed it that the finishing work would be substantially more expensive than quoted. Advisors from Voxer had advised her not to sign the new construction contract prepared by the contractor in December 2017 and to look for a new contractor. Voxer also explained this in a letter to the college in January 2018.

In court, the college countered that only minimal construction had taken place from the issuance of the permit in 2015 until the revocation in early 2018, specifically to give the appearance of using the permit. According to the college, because Voxer also failed to make a plausible case that construction work would resume in the near future, it was allowed to proceed with the revocation. The court ruled that the college could reasonably decide to do so, albeit that this required further substantiation from the college. Voxer appealed the court's ruling to the Council of State.

Council of State: interests of permit holder insufficiently recognized

The Council of State considers that the college did not make it sufficiently clear that construction work would not resume in the near future. Furthermore, the college did not sufficiently consider Voxer's interests. To this end, the Council of State considers the following important:

• the college was aware of the conflict between Voxer and the contractor and was kept informed about it;
• After Voxer rejected its first contractor's new agreement, it almost immediately started looking for and found a new contractor;
• although the final contracting agreement had not yet been reached at the time of the withdrawal, there was agreement to continue construction work on a directional basis, pending the formation of the contracting agreement[3];
• it was therefore sufficiently plausible that Voxer would continue construction work in the near future;
• furthermore, part of the building plan (basement and ramp) had already been realized, so that because of that investment, Voxer has a compelling interest in, on the one hand, completing the building plan and, on the other hand, preventing the demolition of the part already (legally) realized.

The Division therefore overturns the court's ruling and revokes both the revocation decision and the construction stop. With that, Voxer's new contractor can get to work. So a panhandle is in the offing.

Lesson for practice: straining, documenting and timely delivery

Nor is an irrevocable environmental permit a quiet possession. In fact, it can be revoked if it is not used for an extended period of time. If a building plan is delayed and you as a permit holder know that the college is on the fence, make sure that sufficient and well-documented efforts are made to start or resume work. A ruling discussed in an earlier blog post shows that the "evidence" for this must be presented no later than the objection stage. In this way, you limit the likelihood that the college can successfully revoke a permit.

[1] In Het Gooi, permits do get revoked more often, see also our blog post https://poelmannvandenbroek.nl/actuele-zaken/intrekking-omgevingsvergunning-bouwen-let-goed-op-in-bezwaar/

[2] The power formally arises already the first time after 26 weeks of no use of the environmental permit, so also if the work is resumed thereafter. However, the balancing of interests will have to take this into account.

[3] Merely requesting bids is insufficient to make it plausible that construction will resume in the near future (AbRS January 15, 2014, ECLI:NL:RVS:2014:64).