In practice, it is not uncommon for a municipality to grant an environmental permit for construction or for deviating from the zoning plan, even though there may be a private law obstacle to realizing the structure.
Not every private law obstruction results in the refusal of an environmental permit for construction. This is only the case when there is a so-called "evident" obstruction. However, an evident private law obstruction is not easily accepted, even though objectors often invoke it.
This blog discusses the doctrine of the "evident private law obstruction," prompted by a recent ruling by the Administrative Jurisdiction Division of the Council of State on 18 December 2024 (ECLI:NL:RVS:2024:5239) concerning a granted environmental permit for the modification of apartments at Sarphatipark in Amsterdam.
In this case, the municipality of Amsterdam granted an environmental permit to Rembrandt Propco B.V. for the renovation of two properties they own. The renovation work concerns the ground floor and first floor of both buildings. The changes include deepening and expanding the basement per apartment, carrying out foundation repairs, and constructing a rear extension with a rooftop terrace. The four objectors (including the VvE) are the entitled owners of the properties adjacent to Rembrandt’s buildings, which also include the jointly owned (common) walls.
The objectors (including the VvE representing one of the adjacent properties) appealed a decision by the Amsterdam District Court dated 12 April 2023.
The objectors and the VvE stated that they do not grant the required private law consent for the construction plan. This consent is necessary because the construction plan involves jointly owned (common) walls. Rembrandt could also initiate proceedings in civil court and request substitute consent from the civil judge.
According to the Council of State (ABRvS 24 April 2019, ECLI:NL:RVS:2019:1329, para. 4.2), a private law obstruction is a legal obstacle arising from civil law that may hinder the execution of a specific activity (e.g., construction work). Such an obstacle may stem from ownership rights or other third-party rights. Examples include neighbor rights, such as the right to privacy from overlooking windows, or easements, such as a right of way over another’s property. Rights may also arise from agreements or through acquisitive prescription.
According to established case law of the Council of State, a private law obstruction is considered evident if it can be determined without further investigation (by the administrative authority) that the realization of a structure requires another party’s consent, and that party does not and is not obliged to give such consent (see, among others, ABRvS 6 March 2024, ECLI:NL:RVS:2024:961 para. 14.2, second paragraph, and ABRvS 4 November 2020, ECLI:NL:RVS:2020:2599 para. 7.1). It is up to the civil court to determine whether the objector actually has an enforceable right against another party (see also ABRvS 4 November 2020, ECLI:NL:RVS:2020:2599 para. 7.1 and ABRvS 3 February 2021, ECLI:NL:RVS:2021:208, para. 3.1). It is not for the administrative court to assess whether a private law right exists. The administrative court will only consider a private law obstruction to be a barrier to granting a permit if the obstruction is "evident" (see also ABRvS 18 December 2024, ECLI:NL:RVS:2024:5239 para. 3.1).
The above illustrates why administrative courts are reluctant to conclude that an evident private law obstruction exists that would prevent the issuance of a building permit or deviation from the zoning plan. The municipality is also not obliged to investigate on its own initiative whether a private law obstruction exists. If further investigation (by the municipality) is required to determine whether a private law obstruction exists, then the obstruction is generally not evident and does not prevent the issuance of the environmental permit (see ABRvS 10 March 2021, ECLI:NL:RVS:2021:499, para. 11.2, second paragraph).
This case demonstrates that even when another party’s private law consent is required and that party refuses to give it, this does not automatically mean there is an evident private law obstruction. The reason is that an alternative legal route is available to the permit holder via the civil court. The civil court must then determine whether the refusal of consent was unreasonable. In anticipation of such proceedings, the Council of State ruled in this case that “given the nature of the permitted work, which involves the repair and improvement of the foundations, including the jointly owned walls, it cannot be ruled out in advance that in potential civil proceedings, it will be determined that the VvE and others unjustly refused to grant consent” (see ABRvS 18 December 2024, ECLI:NL:RVS:2024:5239 para. 3.2). With this, the Council of State provides further clarification of the evidentiary criterion in the context of required third-party consent.
The Council of State thus ruled that the environmental permit for the renovation of the two buildings was rightly granted by the municipality of Amsterdam. There is no evident private law obstruction.
However, this does not mean that the permit holder can immediately begin the renovation work, as substitute consent must still be obtained through the civil court.
This doctrine is one of many areas where private law and administrative law intersect. We frequently advise and litigate at this intersection.
For questions, please contact Cindy Koningferander, Attorney at law in Real Estate & Government Law.
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