The Administrative Jurisdiction Division of the Council of State (‘the Division’) passed a remarkable decision on 16 August 2017[1]. The Division held that that the Municipal Executive may grant temporary integrated environmental permits for ten years maximum and that this term need not be reduced by the years during which a long-term ‘illegal situation’ existed.
Temporary environmental permits are granted for ten years maximum. The Municipal Executive may also subdivide this term and grant temporary environmental permits for shorter periods of time. However, together the total duration of the environmental permits may not exceed ten years, as the Division decided earlier, on 22 February 2017.[2]
The Division took its decision in the following case. In a holiday park in the Municipality of Gemert-Bakel two lodges had been placed too close to each other. The land use plan requires the lodges to be at least four metres apart. Contrary to the land use plan for the holiday park, the space between the two lodges had been just 3.65 metres for over ten years. Eager to remedy this illegal situation, the Municipality granted a temporary integrated environmental permit for a five-year period, allowing temporarily that the lodges would be less than four metres apart. As a result of this temporary five-year permit, the land use plan would in fact be varied from for more than 15 years (ten years + five years).
The matter brought before the Division was whether the period in which an illegal situation existed preceding the application for a temporary integrated environmental permit should be deducted from the ten-year period. In other words: Did the ten-year term of the temporary permit to be granted start with the illegal use?
On 16 August 2017, the Division answered this question, stating that the ten-year term of the temporary permit starts when the first temporary integrated environmental permit is granted. It does not make any difference that the illegal use had started before the first grant of the temporary integrated environmental permit.
Consequently, even in case of a long-term illegal situation (such as a holiday home built contrary to the land use plan) it is still possible to grant a temporary integrated environmental permit for ten years maximum. The period of illegal use need not be deducted from this ten-year period.
Fiona Sassen
19 September 2017
[1] Administrative Jurisdiction Division 16 August 2017, ECLI:NL:RVS:2017:2212.
[2] Administrative Jurisdiction Division 22 February 2017, ECLI:NL:RVS:2017:487.
