Concrete Prospect of Legalization in Tilburg

Concrete Prospect of Legalization in Tilburg

Concrete prospect of legalization constitutes an important exception to the enforcement principle in administrative law. Administrative authorities such as the Municipality of Tilburg may choose not to enforce if there is a realistic chance that the violation will soon be legalized. This avoids unnecessary proceedings in cases of impending legalization in Tilburg.

Where does concrete prospect of legalization apply in Tilburg?

Under Dutch administrative law, authorities including the Municipality of Tilburg must adhere to the enforcement principle (Article 5:31 Awb). They are required to act against violations, except in exceptional circumstances. A key exception is concrete prospect of legalization, as laid down in Article 5:32, second paragraph, Awb.

This rule fits within the broader framework of the enforcement principle and saves time for both Tilburg residents and local authorities. Example: a Tilburg resident builds a shed without a permit, while the Municipality of Tilburg is preparing a new zoning plan that would allow it. Enforcement would then be redundant.

Legal basis and case law

The foundation is Article 5:32(2) Awb: "The administrative authority may deviate from the principle of good administration if a concrete prospect of legalization exists." This provides a discretion, not an obligation, which must always be substantiated.

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 Tilburg cases, these are:

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

The District Court of Zeeland-West-Brabant in Breda reviews this on appeal and requires thorough reasoning.

Comparison with other exceptions

Practical examples in Tilburg

Example 1: Extension in Tilburg. A resident builds an extension without a permit in the Het Zand neighborhood. The Municipality of Tilburg is processing a new zoning plan with an 80% chance of adoption within 18 months. Enforcement is suspended (cf. AbRS 12 April 2018, ECLI:NL:RVS:2018:1201).

Example 2: Business park in Tilburg. An entrepreneur stores materials without an environmental permit on Westeraam. The province is amending the environmental ordinance following consultation. Concrete prospect leads to suspension of the administrative enforcement order.

Example 3: Negative case. A temporary festival tent stands illegally on a square in Tilburg. The municipality discusses legalization, but without a plan or timeline. Enforcement remains mandatory.

Timing and evidence are crucial; Tilburg residents can raise this in their objection to the Municipality.

Rights and obligations in Tilburg

For residents

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

For administrative authorities

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

If dissatisfied, appeal to the District Court of Zeeland-West-Brabant (Breda). The Juridisch Loket Tilburg offers free initial advice.

Frequently asked questions

Tips for Tilburg residents

• Document everything: Keep all correspondence with the Municipality of Tilburg.
• Seek help: Have a lawyer assess your case at Juridisch Loket Tilburg for a free intake.
• Alternatives: Request suspension of penalty payments.
• Communicate proactively: Inform the authority promptly of developments.