Concrete Prospect of Legalization in Rotterdam

Concrete Prospect of Legalization in Rotterdam

Concrete prospect of legalization constitutes an important exception to the enforcement obligation principle in administrative law. For residents of Rotterdam, this means that the Municipality of Rotterdam may refrain from enforcement measures if legalization of a violation is realistic and imminent. This prevents unnecessary procedures in a city with many construction and development projects.

Application by the Municipality of Rotterdam

In administrative law, authorities such as the Municipality of Rotterdam must enforce violations, as laid down in Article 5:31 Awb. Exceptions, including concrete prospect of legalization (Article 5:32(2) Awb), provide relief. This fits within the broader framework of the enforcement obligation principle and protects Rotterdam residents and the municipality from pointless actions. Consider a shed without a permit on an industrial site along the Maas, while a new zoning plan is in preparation.

Legal Basis and Relevant Case Law

Article 5:32(2) Awb states: "The administrative authority may deviate from the principle of good administration if a concrete prospect of legalization exists." This is a discretionary power that must be substantiated. The Council of State's Division of Administrative Law (AbRS) applies strict criteria, as in cases ECLI:NL:RVS:2013:CA6389 and ECLI:NL:RVS:2018:2859:

• Realistic chance of legalization.
• Achievable within a reasonable timeframe (typically 1-2 years).
• Clear trajectory, such as an ongoing zoning plan with the Municipality of Rotterdam.
• No risk of irreparable harm.

The Rotterdam District Court reviews this in local cases and requires solid reasoning in line with Article 3:46 Awb.

Comparison with Other Exceptions

Practical Examples from Rotterdam

Example 1: Extension in Rotterdam-South. A resident builds an extension without a permit. The Municipality of Rotterdam is preparing a new zoning plan for the neighborhood, with an 80% chance of approval within 18 months. Enforcement is suspended (similar to AbRS 12 April 2018, ECLI:NL:RVS:2018:1201).

Example 2: Storage on port area. A company stores goods without an environmental permit. The Province of South Holland is amending the environmental ordinance; consultation is complete. The Municipality of Rotterdam suspends the penalty payment order due to concrete prospect.

Example 3: Negative scenario. A temporary festival tent in the city center without an APV permit. The municipality considers legalization, but without a procedure or timeline. Enforcement remains mandatory.

In Rotterdam practice, timing and evidence carry significant weight; raise this in your objection to the municipality.

Rights and Obligations in Rotterdam

For Rotterdam Residents

• Right to reasoning: Demand reference to Art. 5:32 Awb in decisions.
• Hearing and rebuttal: In objection proceedings (Art. 7:2 Awb).
• Obligation: Provide evidence, such as draft plans from the Municipality of Rotterdam.

For the Municipality of Rotterdam

1. Investigation duty: Check legalization status.
2. Discretionary power: Balance against public interest.
3. Reasoning obligation: Cite AbRS criteria (Art. 3:46 Awb).

Appeal to the Rotterdam District Court if the prospect is lacking.

Frequently Asked Questions

Tips for Rotterdam Residents

• Document: Keep all correspondence with the Municipality of Rotterdam.
• Seek advice: Contact Juridisch Loket Rotterdam for free assistance.
• Alternatives: Request suspension of penalty payments.
• Communicate proactively: Inform the municipality promptly of developments.