The political space of the council is – roughly speaking – limited by:
- supranational law (such as the Aarhus Convention);
- higher order national law (such as the nature conservation law and provincial space regulations);
- policy rules (see article 4:84 Awb);
- general principles of good administration (such as the principles of confidence, equality and proportionality); and
- an obvious obstacle of private law.
In this opinion, I focus on the phenomenon of “manifest impediment of private law”, following a departmental judgment of June 9, 2021 (ECLI: NL: RVS: 2021: 1214) concerning the redevelopment of a wooded area near The Hague Central Station. This decision not only shows how creative stakeholders can be when they advocate for their opposition to a zoning plan or a “permit of derogation”, but also how unlikely it is to invoke existence. an obvious obstacle of private law.
There is a private law obstacle if the implementation of a proposed project conflicts with civil law. This concerns, among other things, the rights of neighbors (such as the right to be protected from view by windows) and the right of servitude (for example, to access the land of others through a “passage”).
Sometimes a right emerges from a written document such as an agreement, notarial deed or other document. See, for example, ABRvS 9-6-2021, ECLI: NL: RVS: 2021: 1214, ground 12. In this decision it was discussed whether the “Act of Redemption” – an agreement of 1576 (!), between the representatives of the Hof van Holland and the Magistrate of The Hague and, on the other hand, the Stadtholder and the States of Holland – still hamper the cutting of trees in an area that the Municipality of The Hague wishes to redevelop in order to better connect the station center with other parts of the city.
A right can also arise by prescription, for example because the owner of a room has tolerated for decades that his neighbor takes a path to access his property.
“It is not for the administrative tribunal to rule necessarily on the existence or non-existence of private law.
The obstacle of private law must be obvious. In other words: a foreigner must be able to quickly see that private law undoubtedly constitutes an insurmountable obstacle to the realization of a project (according to, for example, ABRvS 24-4-2019, ECLI: NL: RVS: 2019: 1329 , reason 4.2). This requirement arises from the idea that it is in principle for the civil court to determine whether the citizen “effectively” has a right which can be enforced against another (legal) person (according to, for example, ABRvS 3-2-2021, ECLI: NL: RVS: 2021: 208, ro 3.1). It is not for the administrative court to rule necessarily on the existence or non-existence of private law.
The administrative judge is reluctant
This explains why the administrative tribunal does not hasten to assume that there is an obvious obstacle of private law which opposes the granting of a “derogatory permit” or of a zoning plan (according to, for example, , ABRvS 3-2-2021, ECLI: NL: RVS: 2021: 208, ground 3.1), and that the city council and the city executive are not obliged to spontaneously investigate the existence of such an obstacle ( according to, for example, ABRvS 10-3-2021, ECLI: NL: RVS: 2021: 499, sol 11.2).
Some recent examples:
- ABRvS 26-5-2021, ECLI: NL: RVS: 2021: 1095, ro 4.4 (can the applicant claim the removal of a gutter?);
- ABRvS 21-4-2021, ECLI: NL: RVS: 2021: 831, plot 5.3 (does the right of easement continue to exist if the plot to which the zoning plan relates?);
- ABRvS 14-4-2021, ECLI: NL: RVS: 2021: 784, land 13.2 (is there a “navigation right” for unhindered use of a certain waterway?);
- ABRvS 30-9-2020, ECLI: NL: RVS: 2020: 2309, field 6.4 (will compliance with the maintenance obligation become impossible?).
Many other situations can be considered, for the argument of the obvious obstacle of private law is often thrown into the battle of administrative law.
Incidentally, the Division finds that there is an obvious private law obstacle. Example: ABRvS 24-4-2019, ECLI: NL: RVS: 2019: 1329, land 4.2. The owner of a land is not obliged to allow his neighbor to install a gutter there, if this causes water to enter his land. This emerges from Article 5:52 (1) of the Dutch Civil Code (part of Title 5.4; Neighbors Act). Compare the judgment of April 24, 2019 with that of May 26, 2021; The devil is in the details.
Wolters Kluwer Schulinck experts
Customers of knowledge base Environmental law who wants to know if private law is an obstacle to the adoption of a zoning plan or the granting of an environmental permit, can always contact the experts of Wolters Kluwer environmental law by asking a question via the helpdesk. These experts then work with the questioner to find a tailor-made solution for a specific problem.
Mr. Dr Rens Koenraad, Professional Writer Environmental Law
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