Incorrect publication of dues ordinance, result no dues!

Although municipalities have a lot of freedom in establishing fee ordinances, there are some ground rules that municipalities must follow. One of these rules is that dues ordinances must be properly published. After all, citizens and companies should not have to search for the question of how much they have to pay in fees. If the fee regulation has not been published in a correct manner, no fees may be given on the basis of that fee regulation.

Definition Construction costs in fee regulations

Many dues ordinances provide that construction fees are determined using a percentage of construction costs. Most dues ordinances then include a definition of construction costs. In this definition, construction costs are often defined as the contract price excluding sales tax as referred to in paragraph 1, first paragraph, of the Uniform Administrative Conditions for the Execution of Works 2012 (UAV 2012), or the construction costs as referred to in NEN 2699.

The dues ordinance must be publicized to take effect. The question then is what requirements for publication apply to documents referenced in the dues ordinance. More specifically: Must the UAV 2012 and NEN 2699 also be made available for inspection? This has been litigated several times.

NEN standards

With respect to NEN standards, case law has been clear for some time. If in the fees ordinance or the associated fees table it is not written where the relevant NEN standards are available for inspection, the publication requirements have not been met. The consequence is then that (the relevant part of) the fee regulation/tariff table is non-binding. This means that construction costs may not be determined in this manner. In case the fees ordinance does not provide for another way to determine the construction costs, this leads to the fact that no fees may be levied. Judges are also clear about this!

UAV 2012

With regard to the reference to the UAV 2012, there have been varying judgments in lower courts as to whether it should be co-published. After all, the UAV 2012 were published in the Staatscourant in the context of another regulation, unlike the NEN standards, and therefore known to everyone.

HR provides clarity regarding disclosure UAV 2012

In the judgment of February 1, 2019 (for fans ECLI:NL:HR:2019:143), the Supreme Court clarifies this. The Supreme Court ruled that sections 139 and 217 of the Municipalities Act impose requirements on the recognizability of the standards according to which municipal taxes are levied. These requirements imply, among other things, that the tax ordinance must contain all essential elements, so that the person who must pay taxes can determine for himself what the extent of the fees will be. Those essential elements, according to the Supreme Court, in the case of the levying of construction fees include the regulations for determining construction costs on which the amount of the fees are based. This is met, according to the Supreme Court, if a fees ordinance for the applicable regulations:

1. refers to a text published in the Government Gazette,
2. in that tax ordinance the correct full title of that text
3. as well as publication year and number of the Official Gazette.
   If this is not the case, it must be assessed on a case-by-case basis whether it is sufficiently clear which applicable regulation is being referred to. The Supreme Court then ruled that the term "UAV 2012" is sufficiently clear.

Conclusion regarding publication UAV 2012 / NEN standards mentioned in fee regulations

Therefore, if a dues ordinance refers to the "UAV 2012" as far as construction costs are concerned, the UAV 2012 need not be re-published when the dues ordinance is published.

So this is different for the NEN standards, because they are not standards that have already been published in the Official Gazette under another regulation.

It is therefore desirable to look carefully in the dues ordinance to see exactly what is stipulated there, as this is important for the question of whether the dues ordinance has been properly publicized and the charging officer is authorized to levy dues.

Object to dues?

If you would like to learn more about how to object to an expensive dues ordinance or reduce the amount of dues, please read the articles below or contact me. I am happy to be at your service.

• Lower dues - how do you lower your dues from the municipality?
• Object to expensive fee ordinance? 3 reasons why it pays off
• Difference in dues: unreasonable?
• Fees, we can't make it more fun, or can we?