A ruling(ECLI:NL:RVS:2017:2196) of August 16, 2017 by the Administrative Law Division of the Council of State (further: the Division) shows once again that things are far from always going well with the publication of decisions. If there is an incorrect publication, a decision does not enter into force. And the consequences are significant, especially in the case of enforcement decisions.
What was going on?
These proceedings were about three orders under penalty imposed in April 2014 on a property owner in Eindhoven for violation of the Housing Act and the Building Decree 2012. Namely, the property was not equipped with properly functioning and interconnected smoke detectors. The college had checked in the land registry to which PO Box address they could reach the property owner and sent the decrees to the PO Box address listed therein. The property owner did not comply with the charges and the college subsequently recovered a total of €5,000.00 in penalties from the property owner.
The property owner argued in these proceedings that he never received the decisions imposing an order for a penalty and the recovery decision. In fact, he had not used the mailbox address to which these decisions had been sent for a long time. Only on Oct. 30 did he become aware of the recovery decision, as a letter from the college had been sent to his residential address at that time, referring to this decision. On Nov. 27, the property owner then objected to the recovery decision and the periodic penalty decisions unknown to him.
Objection and appeal proceedings: inadmissible for delay
In the objection procedure, the college declared the property owner's objection to the orders imposing an order for periodic penalty payments inadmissible because the property owner filed the objection too late and the college saw no reasons to consider the delay excusable. The objection to the recovery decision was also declared inadmissible by the college because the property owner did not file the objection within two weeks of becoming aware of the recovery decision. In the subsequent appeal proceedings, the court followed the college in this.
Lessons from the Department
The property owner then appealed to the Division. The Division addresses several legal issues in this ruling: how decisions must be publicized, when there is an excusable delay, and what the consequences are if a decision is not properly publicized.
Notification of an order under penalty is made by sending to the GBA address
First of all, the Division ruled that the college should have sent the decisions imposing an order for an incremental penalty to the residential address of the property owner and not to the post office box address listed in the land registry. After all, the pawn owner did not register the postal address with the municipality as the correspondence address. However, the residential address of the pawn owner was included in the Municipal Personal Records Database (GBA, now Personal Records Database). Since the property owner did not provide another correspondence address, the decision should have been sent to the property owner's GBA address. In this regard, the Division considers it important that the pawn owner is obliged to report his residential address, as well as any changes therein, to the College.
The consequence of the incorrect transmission means that the transmission does not meet the legal requirements of publication within the meaning of Article 3:41, paragraph 1, of the Awb. This means that the decisions were not properly publicized and an objection period was not commenced. The Division therefore rules that the objection was wrongly declared inadmissible. Incidentally, the same applies to the recovery decision.
Two-week objection period applies only if a decision has been properly announced
The Division notes that the property owner became aware of the recovery decision on October 30, as he received a letter at his residential address at that time referring to this decision. The college argues that the property owner's objection was filed late on Nov. 27. According to the college - supported in this by the court - it is in fact established case law of the Division that there can only be an excusable delay if an objection is still filed within two weeks after someone has become aware of a decision.
Again, the Division does not follow the college or the court. The Division explains that that case law refers only to decisions that have been properly publicized. And that is not the case with the collection decision. The objection against the collection decision was therefore also wrongly declared inadmissible.
Consequence of improper publication: decision does not take effect, no basis for recovery
Since the decisions to impose an order for periodic penalty payments were not properly publicized, the Division concludes that these decisions never took effect. This means that no penalty payments can be forfeited. Therefore, there is no legal basis for being able to make a recovery decision.
The Division set aside the District Court's decision, revoked the decision on objection and substituted its decision for it. To inform the Board, the Division notes that if the Board wishes to continue the enforcement - notwithstanding the passage of time and the now changed situation - the Board will have to start a new procedure with sending a new enforcement decision to the GBA address of the property owner, after which the property owner will have the opportunity to object.
Conclusion
This ruling shows that the publication of decisions far from always goes well. The consequences are major, especially in the case of enforcement decisions. An incorrectly published enforcement decision does not enter into force and can therefore never form a basis for collection. It is therefore always advisable to check whether decisions have been properly publicized.
