Consecutive enforcement decisions? Check for violations each time!

Even the Administrative Law Division of the Council of State (the Division) is not always right. This can result in a substantively incorrect decision acquiring "formal legal force," meaning that it must be assumed that the decision is substantively correct. With enforcement decisions, this is more nuanced, as evidenced by a July 31, 2019 ruling(ECLI:NL:RVS:2019:2648). At issue in this ruling are an order under penalty (the charge) and a recovery decision based on it.

The first order under penalty

Appellants occupy a farm on Rijksweg Zuid in Elst. A building permit was granted in 1987 for a manure slab. However, the manure slab has been enlarged over the years so that it no longer complies with the 1987 building permit. Following a request for enforcement, the Overbetuwe Municipal Executive (the College) first imposed an order for periodic penalty payments on the appellants in 2013. Appellants were required to bring the size of the manure slab back into compliance with the building permit on pain of a penalty payment.

Court and Division: environmental permit needed or not?

On appeal, however, the court ruled that the manure slab did not require an environmental permit. Therefore, there is no violation, so the court annulled the charge. On appeal, however, in its September 16, 2015 ruling(ECLI:NL:RVS:2015:2919), the Division finds that the expansion of the manure slab does require an environmental permit. Thus, the Division set aside the court's ruling. The order has thus become irrevocable and has thus acquired "formal legal force": the correctness of the contents of the order must be assumed.

The second order under penalty

Because the appellants did not remove the expansion of the manure slab and no permit was issued for it, the college imposed the same order under penalty again in 2016: the expansion of the manure slab must be removed on pain of a lump sum penalty of €15,000. After the expiration of the period stipulated in the order within which the violation must be ended, the college also decides to recover this penalty payment.

Notwithstanding the Sept. 16, 2015 ruling and the irrevocable 2013 order under penalty, however, the appellants believe that the manure slab does not require a permit. In that case, the college is not authorized to impose an order, let alone to recover a penalty payment forfeited as a result. Thus, the parties ended up back in the Division.

Formal legal force in enforcement decisions

In the July 31, 2019 ruling, the Division nuanced the doctrine of formal legal force in enforcement decisions:

"A decision that has become irrevocable has formal legal force. This means that, in principle, the correctness of the decision must be assumed.

The formal legal force of a decision to impose an order for incremental penalty payments does not go so far that in a later enforcement procedure it must simply be assumed that a violation has occurred. When imposing a new order for incremental penalty payments, the basic principle is that the Board must again assess - based on the facts and circumstances as they apply at that time - whether a violation has occurred. There is all the more reason for such a substantive assessment if the authority to make an enforcement decision is contested by one of the parties (compare consideration 2.2 of the judgment of September 21, 2016, ECLI:NL:RVS:2016:2499)."

In other words: if it has previously been irrevocably ruled that there is a violation, this does not mean that the imposition of a new order also by definition constitutes a violation, even if the situation is legally unchanged. Indeed, it appears that the manure slab - and also its expansion - is permit-free under Section 3 of Annex II of the Environmental Law Decree (Bor). For the record: even in 2013, the Bor already had this provision. Thus, the Division considers:

"[...] that - contrary to the aforementioned ruling of Sept. 16, 2015 - no environmental permit for the activity of 'building' is required for the expansion of the manure slab."

Although the Division is usually on its qui vive regarding potential permit exemptions, especially in taxing decisions, everyone seems to have forgotten that in 2015. In such cases, it is good to note that the Division is not too shy to acknowledge that its earlier ruling on the permit requirement was incorrect.

Conclusion: always address violation

If you are confronted with an enforcement decision, it is always worthwhile investigating whether a violation has actually occurred. This also applies even if enforcement action has already been taken for the same offence and this has resulted in an irrevocable decision stating that there has been a violation.