Concrete Prospect of Legalization in Delft

Concrete Prospect of Legalization in Delft

Concrete prospect of legalization constitutes an important exception to the principle of the duty to enforce in administrative law. For residents of Delft, this means that the Municipality of Delft may refrain from enforcement when a violation is likely to be legalized in the short term, such as through ongoing zoning plans. This avoids unnecessary proceedings at the District Court of The Hague.

Where does concrete prospect of legalization apply in Delft?

In Dutch administrative law, including for the Municipality of Delft, the principle of the duty to enforce under Article 5:31 of the Awb applies. Administrative authorities must act against violations, except in exceptional circumstances. A key exception is concrete prospect of legalization, as laid down in Article 5:32, second paragraph, of the Awb.

This rule helps Delft residents and the local government maintain efficiency. Consider a shed without a permit in the Buitenhof neighborhood, while the Municipality of Delft is preparing a new zoning plan that would allow it. Enforcement would then be pointless.

Legal basis and case law

The foundation is Article 5:32, paragraph 2, Awb: "The administrative authority may deviate from the principle of good administration if there is a concrete prospect of legalization." This is a discretionary power, not an obligation, which must be properly motivated.

The Administrative Jurisdiction Division of the Council of State (AbRS) applies strict criteria, as in cases ECLI:NL:RVS:2013:CA6389 and ECLI:NL:RVS:2018:2859. For relevance to Delft: the District Court of The Hague requires:

• A realistic chance of legalization.
• Realizable within a reasonable timeframe (typically 1-2 years).
• A clear process, such as a zoning plan procedure by the Municipality of Delft.
• No irreparable harm from the delay.

The District Court of The Hague strictly reviews the motivation for this discretionary decision.

Comparison with other exceptions

Practical examples in Delft

Example 1: Extension in Delft. A resident builds an extension without a permit in the historic city center. The Municipality of Delft is processing a new zoning plan that approves it, with an 80% chance within 18 months. Enforcement is halted (compare AbRS 12 April 2018, ECLI:NL:RVS:2018:1201).

Example 2: Business storage. An entrepreneur in Delft-Zuid uses land without an environmental permit. The province is amending the environmental ordinance; consultation is complete. Concrete prospect leads to suspension of the administrative enforcement order.

Example 3: Negative case. A temporary festival tent in Delft city center without exemption. The Municipality of Delft considers legalization, but without a concrete plan. Enforcement remains mandatory.

Timing and evidence are crucial; Delft residents can submit this in their objection to the Municipality of Delft.

Rights and obligations in Delft

For Delft residents

• Right to motivation: Request a decision referring to Art. 5:32 Awb.
• Right to hearing and response: In the objection procedure (Art. 7:2 Awb).
• Obligation: Provide evidence, such as draft plans from the Municipality of Delft.

For the Municipality of Delft

1. Duty to investigate: Check the status of legalization.
2. Discretion: Weigh against the public interest.
3. Duty to motivate: Refer to AbRS criteria (Art. 3:46 Awb).

If dissatisfied, appeal to the District Court of The Hague. The Legal Aid Office in Delft offers free advice.

Frequently asked questions

Tips for Delft residents

• Document everything: Keep all correspondence with the Municipality of Delft.
• Seek help: Consult the Legal Aid Office in Delft for a free intake and assessment.
• Alternatives: Request suspension of the administrative enforcement order.
• Be proactive: Inform the Municipality of Delft early about legalization plans.