When an administrative body fails to make a timely decision on an application for an environmental permit, the permit arises by operation of law in certain cases.
A clear line has been taken by the Division over the past six months, from which it can be inferred that it does not readily qualify "vague" letters requesting planning cooperation as "applications. And if there is no application, there can never be a permit by operation of law. A March 7 ruling(ECLI:NL:RVS:2018:754) further demonstrates this.
What was going on?
The appellant in these proceedings owns a parcel of land on which he wishes to establish regular retail. However, the parcel is zoned "Business Park. He therefore sends a letter to the municipality requesting planning cooperation from the college.
Over two months later, the college responds by letter denying the appellant's request. In turn, the appellant informs the college that it did not make a timely decision on the request to permit regular retail on the parcel. In doing so, the appellant claims to have obtained an environmental permit by operation of law.
However, the college is of the opinion that the appellant's letter is only to be regarded as a request in principle and therefore does not constitute an application for an environmental permit. As a result, according to the college, no permit by operation of law arose at all. The college refused the disclosure requested by the appellant.
Appellant did not leave it at that and successively appealed to the district court and to the Division.
Concrete and unambiguous request
It is established case law of the Division that an application for an environmental permit does not necessarily have to be submitted through the Environment Counter (OLO), but can also be submitted in other ways, such as - simply - sending a letter to the competent authority.
Previous decisions of the Division show that a request to grant an environmental permit must then be "so concrete and unambiguous" to qualify as an application within the meaning of the General Administrative Law Act.
Accordingly, in these proceedings, appellant's letter is subject to detailed consideration. Appellant's letter states in part:
In the context of the above and all developments in and around Beek, my request to cooperate with the planning by granting permission for the existing building located at the [location] to be used for regular retail trade. Filling in the vacancy in question will benefit your 'Future Vision 2010-2030 of the Municipality of Beek' in the context of optimizing and revitalizing existing business parks.
At first glance, this would seem to be a concrete and unambiguous request to count as an application and would thus create a permit by operation of law if the application is not decided on in time. Yet that is not the case in these proceedings.
Indeed, concrete request should not be 'disguised'
Indeed, the Division - following the court in doing so - finds that the request is (after all) not an application within the meaning of the General Administrative Law Act. It states that the quote from the letter "viewed in isolation, could be construed as an application for an environmental permit, but that, given the context of the letter, this letter does not concern a concrete request to make a decision.
To reach that conclusion, the Division combines some of the criteria given in previous procedures (Zevenaar and Drachten rulings):
- It must be made unambiguously clear that it is intended to submit an application for an environmental permit.
- The description of the plan must be specific (enough), for example, by including a further description of the plan so that it is clear which structure(s) the request relates to. The extent of the transformation must also be clear.
- If an expert in the field of spatial planning is involved, the consideration is whether it could not reasonably be expected that the regular route for applying for an environmental permit (OLO) had to be used. The appellant's letter did not meet these criteria and therefore, according to the Division, there was (after all) no question of an application and no permit was created by operation of law.One aspect that the Division does not mention in this ruling, but does in other proceedings, is that if there is doubt as to whether the application is a request for an environmental permit, it is up to the applicant to inform the college - in a timely manner - that a letter is an application for an environmental permit.
Conclusion
It is not a requirement to submit an application for an environmental permit through the Environment Desk. However, it can be inferred from the case law of the Division that if another method of submission is chosen, a critical review by the Division can be expected.
The application for an environmental permit will have to show the specific details of the plan (which must also be entered in the OLO) very concretely, making it unambiguously clear that the intention is to submit an application for an environmental permit. Only if this is met will the Division treat a request as a (serious) application.
