Concrete Prospect of Legalization in Den Haag
Concrete prospect of legalization constitutes an important exception to the principle of the duty to enforce in administrative law, particularly relevant for residents of Den Haag. A public authority such as the Municipality of Den Haag may refrain from enforcement if there is a realistic chance that the violation will soon be legalized. This prevents unnecessary procedures in a city with extensive construction activity.
Where does the concrete prospect of legalization apply in Den Haag?
In Dutch administrative law, including with the Municipality of Den Haag, the principle of the duty to enforce applies under Article 5:31 of the Awb. Public authorities must act against violations, except in exceptional circumstances. A key exception is the concrete prospect of legalization, as laid down in Article 5:32, second paragraph, of the Awb.
This rule helps both Den Haag residents and the municipality avoid inefficient actions. Consider, for example, a shed built without a permit in a Den Haag neighborhood, while the Municipality of Den Haag is preparing a new zoning plan that would allow it.
Legal basis and case law
The basis is Article 5:32(2) Awb: "The public authority may deviate from the principle of good administration if a concrete prospect of legalization exists." This is a discretionary power, not an obligation, which must be properly substantiated.
The Administrative Law 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 Den Haag, the District Court of Den Haag plays a role in appeals:
- Realistic chance of legalization.
- Within a reasonable timeframe (often 1-2 years).
- Clear process, such as an ongoing plan with the Municipality of Den Haag.
- No irreparable harm from waiting.
The District Court of Den Haag scrutinizes the reasoning sharply in local cases.
Comparison with other exceptions
| Exception | Description | Legal basis |
|---|---|---|
| Concrete prospect of legalization | Realistic chance of legalization within a reasonable timeframe | Art. 5:32(2) Awb |
| Disproportionate | Balancing of interests: enforcement disproportionate | Art. 5:32(1) Awb |
| Force majeure | Enforcement not reasonably required | Art. 5:31(2) Awb |
Practical examples in Den Haag
Example 1: Extension in a Den Haag neighborhood. A resident builds an extension without a permit in Scheveningen. The Municipality of Den Haag is processing a new zoning plan that approves it, with an 80% chance within 18 months. Enforcement is suspended (similar to AbRS 12 April 2018, ECLI:NL:RVS:2018:1201).
Example 2: Business storage. An entrepreneur on a Den Haag industrial site uses land illegally. The province is amending the environmental ordinance; consultation is complete. The concrete prospect leads to suspension of the administrative enforcement order.
Example 3: Negative case. A temporary festival tent in the city center without an APV permit. The Municipality of Den Haag considers an amendment, but without a plan or date. Enforcement remains mandatory.
In Den Haag, timing and evidence are essential; raise this in your objection to the municipality.
Rights and obligations in Den Haag
For citizens
- Right to reasoning: Request reference to Art. 5:32 Awb.
- Hearing and rebuttal: In objection proceedings (Art. 7:2 Awb).
- Obligation: Provide evidence of the process, such as Den Haag draft plans.
For public authorities
- Duty to investigate: Check status with Municipality of Den Haag.
- Discretion: Weigh against public interest.
- Reasoning required: Cite AbRS criteria (Art. 3:46 Awb).
If dissatisfied, appeal to the District Court of Den Haag.
Frequently asked questions
What if legalization is delayed?
If the timeframe is exceeded without progress, the prospect lapses. The District Court of Den Haag applies a maximum of 2 years.
Can I request it?
Yes, submit a request with evidence to the Municipality of Den Haag. If no response: penalty payment (Art. 5:33 Awb). Consult Juridisch Loket Den Haag.
Does it vary by area?
No, it applies to construction, environment, and APV in Den Haag; the Environment and Planning Act refers to the Awb.
Enforcement despite prospect?
File objection and appeal to District Court of Den Haag; high success rate if reasoning is poor.
Tips for Den Haag
- Document everything: Keep all correspondence with Municipality of Den Haag.
- Expert advice: Have Juridisch Loket Den Haag assess the chances for free advice.
- Alternative: Request suspension of administrative enforcement order.
- Proactive: Inform Municipality of Den Haag promptly of developments.