In environmental law, lawsuits are frequently brought about infringement of privacy and other alleged infringements on the residential and living environment. Generally, these are zoning plan procedures or procedures about environmental permits in which one neighbor takes the position that the competent authority should not have taken the decision, because it makes a too far-reaching encroachment on the residential and living environment possible.
In a ruling by the Administrative Law Division today, the opposite situation was at issue. The (former) general board of the administrative committee of stadsdeel Centrum (Amsterdam), refused an application for the realization of a balcony at the site of an Amsterdam inner-city courtyard garden, precisely because, according to the general board, the balcony in question would lead to a disproportionate impairment of the privacy and living and working environment of the local residents.
What is the situation again? What room does the competent authority have to "interfere" (by necessity or otherwise) in such an "administrative law neighbor dispute" over a balcony, and who ultimately determines the end game?
No role for licensing and administrative law judge in tied decisions
Neighborhood law (including nuisance, distances of structures to the plot boundary, Article 5:37 et seq. of the Civil Code) cannot play a significant role in an application for an environmental permit for only the activity of building, given the limitative-imperative wording of Article 2.10 of the Wabo. Indeed, a private law obstacle is not a ground for refusal for the environmental permit for the activity of building. The environmental permit procedure for that activity therefore does not offer the competent authority the opportunity to interfere in neighbor law disputes and thereby weigh private law interests. In short, if the requested building plan fits the zoning plan, the permit must be granted. It is also for this reason that the competent authority often notes in a letter accompanying the permit that the granting of the building permit does not by definition safeguard against any private law obstacles and rights of third parties. Third parties can always turn to the civil courts.
Balancing interests when departing from zoning plan: 'policy space' and review by administrative law judge
However, as soon as a building application conflicts with the zoning plan, then all interests must be weighed up, including, therefore, the private law aspects of the plan. After all, there is then no question of a limitative-imperative system. One of the issues will then be whether the private-law obstacle is 'evident'.
A deviation from the zoning plan was also at issue in the case about the balcony in the Amsterdam courtyard garden. In that ruling, the Division considered that the decision whether or not to grant an environmental permit to deviate from the zoning plan belongs to the authority of the general administration, in which the general administration has policy leeway, according to the Division.
The Division uses the term "policy space" here, expressing, very briefly, that it is not up to the administrative judge, but to the general administration, to ultimately decide on the acceptability of the encroachment on the residential and living environment. This policy space goes far, but is not unlimited. The 2017 Annual Report of the Council of State notes the following about "policy space":
The 2016 Annual Report already mentioned the administrative law judge's more intrusive review. As has not gone unnoticed in the literature, this has partly led the Administrative Law Division to abandon the use of the term 'marginal review', which suggests a too non-committal attitude on the part of the court. The terms 'policy freedom' and 'discretion' have been replaced by 'policy space' and 'discretion', with the umbrella term 'decision space'. The long-standing term 'freedom' is no longer used because it can be confusing. No use of a public law power is completely free, but always bound by the rules of law.
For the case at hand, this means that the administrative judge will test whether the general administration could, in the end, reasonably refuse to grant the requested environmental permit. 'Reasonably' therefore does not mean that every decision and every justification can stand the test of the administrative judge. Among other things, the 'proportionality' of the infringement will be important.
According to the ruling, the court at first instance also saw reason to conduct an on-site investigation in order to determine, according to its own observations, what the building plan would actually infringe on the neighbors' living and working environment. A nice example of an active attitude of the administrative judge, "despite" the policy space of the general administration.
Respecting 'policy space'
The policy space will still often require that decisions can stand the test of criticism. In this particular case, the applicant for the balcony noted that the location was in an urban area and that more balconies and terraces had been built in the vicinity. Following the court, however, the Division ruled that this does not mean that the general government is obliged to grant a permit that may lead to a more far-reaching infringement of the privacy and living and working environment of nearby residents. The same applies to the applicant's contention that the realization of the balcony did not violate neighbor law, in this particular case Article 5:50 of the Civil Code, which includes a distance standard of 2 meters to the property boundary. The General Board must make its own consideration in this regard, according to the Division. Therefore, if, as in this case, there is no private law obstacle, it does not mean that "therefore" the permit should be granted.
The (obvious) private law impediment
The situation in which the balcony does violate Section 5:50 of the Civil Code is the doctrine of the evident private-law obstacle. This concerns situations in which the licensing authority may not (can no longer) use its discretion under circumstances, because it is clear in advance that a private law obstacle stands in the way of the realization of the structure. More on that interesting matter in a future blog!
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