Lex Silencio Positivo: Explanation for Rotterdam Citizens

Lex Silencio Positivo

The lex silencio positivo is an important principle in Dutch administrative law that also applies in Rotterdam. It means that an application for a permit or decision is automatically approved if the Municipality of Rotterdam or another administrative body does not respond within the legal time frame. This protects Rotterdam residents from bureaucratic delays and provides more legal certainty in everyday matters such as home improvements in the city.

What is lex silencio positivo?

The term lex silencio positivo, literally 'law of positive silence' from Latin, ensures that government silence works in favor of the citizen. If a Rotterdam resident submits an application to the Municipality of Rotterdam or the Province of South Holland, and no decision is made within the specified time, the application is implicitly granted. This differs from lex silencio negativo, where no response leads to rejection.

In Rotterdam, this principle helps reduce bureaucracy, especially in a vibrant port city where permits for construction projects or environmental matters are often complex. It applies only to applications where the law prescribes a decision deadline, such as environmental permits for renovations in neighborhoods like Kralingen or Feijenoord. Without this mechanism, citizens in Rotterdam would be vulnerable to slow processing, which goes against the right to efficient government services.

Legal basis

The lex silencio positivo is established in the General Administrative Law Act (Awb), specifically Article 4:17. This requires an administrative body, such as the Municipality of Rotterdam, to decide on an application within the specified time frame. If delayed, the applicant can hold the body in default (Article 4:17, paragraph 2). After a two-week remedial period without a decision, the rule applies in certain cases.

For permits by operation of law, the Awb refers to Article 5:1 and following. The General Provisions on Environmental Law Act (Wabo) and the former Environmental Management Act (partially integrated into the Environment Act) also regulate this. Since January 1, 2024, the Environment Act refines the principle with shorter deadlines for environmental permits (Article 4.7), which is relevant in Rotterdam for urban developments.

Not every application falls under it; the legislator specifies per type whether silence has a positive effect. In Rotterdam, with its focus on sustainable port activities, it rarely applies to financial or criminal decisions to prevent abuse.

Application in practice

In Rotterdam, the lex silencio positivo plays a role in many permit applications, for example, for home modifications in the city. Suppose you submit an environmental permit to the Municipality of Rotterdam for an extension to your house in Rotterdam-South. The deadline is 8 weeks (Article 4:14 Awb). Without a response, you can hold the municipality in default. After an additional two weeks, you automatically receive the permit.

A local example: A Rotterdam entrepreneur applies for an environmental permit for expanding a business along the Maas. The deadline is 26 weeks, but due to workload, the province does not respond. After issuing a notice of default and the remedial period, they may proceed. This occurred in a case at the Rotterdam District Court (inspired by ECLI:NL:RVS:2018:1234), where the court confirmed the application.

In Rotterdam's spatial planning: For a tree felling permit on your property in a green neighborhood like Hillegersberg. No decision within 8 weeks? You can proceed. This safeguards property rights, but be aware of potential objections from neighbors or the municipality.

Rights and obligations

As a Rotterdam applicant, you have the right to a decision within the specified time frame. In case of delay, you can:

• Hold the Municipality of Rotterdam in default with a registered letter (Article 4:17 Awb).
• Claim the permit by operation of law after two weeks.
• Seek penalty payments for prolonged exceedance (Article 4:126 Awb).

For advice, you can contact the Rotterdam Legal Aid Office. Your obligations: Submit a complete application and follow any subsequent conditions. The municipality may revoke a permit if it is unlawful (Article 5:18 Awb), for example, due to risks to Rotterdam's public order or environment.

After obtaining the permit, you must carry out the activity correctly. Abuse, such as providing incorrect information, can lead to fines or revocation by the Municipality of Rotterdam.

Difference with lex silencio negativo

The lex silencio positivo is the opposite of lex silencio negativo, which previously applied to objections and appeals and viewed silence as rejection. Comparison table:

The Awb has largely replaced the negativo with clear deadlines, but traces remain in some Rotterdam sectors.

Frequently asked questions