Concrete Prospect of Legalisation in Amsterdam

Concrete Prospect of Legalisation in Amsterdam

Concrete prospect of legalisation constitutes an important exception to the enforcement duty principle in administrative law. An administrative authority such as the Municipality of Amsterdam may refrain from enforcement if there is a realistic chance that the violation will soon be legalised. This prevents futile procedures in a dynamic city like Amsterdam.

Where does concrete prospect of legalisation apply in Amsterdam?

In Dutch administrative law, including with the Municipality of Amsterdam, there is an enforcement duty principle under article 5:31 Awb. Administrative authorities must act against violations, except in exceptional circumstances. A key exception is concrete prospect of legalisation, as laid down in article 5:32, second paragraph, Awb.

This rule protects Amsterdam residents and local authorities from inefficient actions. Consider a resident building a dormer window without a permit, while the Municipality of Amsterdam is preparing a new zoning plan that would allow it, fitting the busy housing market.

Legal basis and case law

The foundation is article 5:32(2) Awb: "The administrative authority may deviate from the principle of good administration if a concrete prospect of legalisation exists." This is a discretionary power, not an obligation, which must be well-motivated.

The Division for Administrative Justice Cases of the Council of State (AbRS) applies strict criteria, as in cases ECLI:NL:RVS:2013:CA6389 and ECLI:NL:RVS:2018:2859. This also applies in Amsterdam at the Amsterdam District Court in first instance:

• Realistic chance of legalisation.
• Within foreseeable time (typically 1-2 years).
• Clear trajectory, such as an ongoing zoning plan by the Municipality of Amsterdam.
• No irreparable damage from delay.

The Amsterdam District Court scrutinises the reasoning rigorously in objection and appeal proceedings.

Comparison with other exceptions

Practical examples in Amsterdam

Example 1: Dormer window and zoning plan. An Amsterdam resident builds a dormer on a terraced house without a permit. The Municipality of Amsterdam has a new zoning plan in process that legalises it, with an 80% chance within 18 months. Enforcement is suspended. (Cf. AbRS 12 April 2018, ECLI:NL:RVS:2018:1201.)

Example 2: Commercial space in Oost. An entrepreneur uses land for storage without a permit. The Municipality of Amsterdam amends the environmental ordinance following consultation. Concrete prospect leads to suspension of the administrative enforcement order.

Example 3: Negative case. A temporary terrace extension on a canal without an APV permit. No concrete legalisation trajectory; the Municipality of Amsterdam must enforce.

Timing and evidence are essential for Amsterdam residents in proceedings at the Amsterdam District Court.

Rights and obligations in Amsterdam

For Amsterdam residents

• Right to reasoning: Request a decision referring to art. 5:32 Awb from the Municipality of Amsterdam.
• Right to hearing and rebuttal: In objection proceedings (art. 7:2 Awb).
• Obligation: Provide evidence, such as draft zoning plans.

For administrative authorities such as Municipality of Amsterdam

1. Duty to investigate: Check legalisation status.
2. Discretion: Weigh against public interest, such as liveability.
3. Duty to motivate: Cite AbRS criteria (art. 3:46 Awb).

If dissatisfied, appeal to the Amsterdam District Court.

Frequently asked questions

Tips for Amsterdammers

• Document everything: Keep information on Municipality of Amsterdam plans.
• Seek help: Consult the Amsterdam Legal Aid Office for free advice.
• Alternatives: Request suspension of administrative enforcement order.
• Proactive communication: Inform the Municipality of Amsterdam promptly about developments.