Authority versus obligation in Delft
In the administrative law of the municipality of Delft, the principle of 'authorised but not obliged' to enforce applies, as confirmed in article 5:1 Awb. The board of mayor and aldermen of Delft has discretionary authority, but must motivate decisions on the basis of proportionality, carefulness and local circumstances, such as the vulnerable historical inner city around the Market and the TU Delft campus.
The Council of State applies the 'integral duty to motivate': the Delft administration must explain why no milder intervention is taken, for example in violations of the Delft Welfare Note, or why enforcement is omitted in case of minor building violations in the old city centre. This prevents passivity in case of structural violations, such as illegal Airbnb rentals in monumental buildings.
Edge cases in Delft practice
In case of minor violations, such as temporary nuisance from student housing, remaining passive can be justified, provided it is internally documented in line with the Delft Enforcement Policy 2023. In case of repeated non-compliance, such as environmental violations around Technopolis, enforcement is mandatory. Case law (ECLI:NL:RVS:2021:567, with parallels in Delft cases) states that local policy rules are not a free pass for non-enforcement.
The violator can demand enforcement via the administrative court if the Delft administration enforces unlawfully or is negligent, for example in not addressing parking violations on Phoenixstraat. This balance safeguards both enforcement and legal protection in the municipality of Delft.