A licence by operation of law
Category: Administrative law
If the Dutch administrative authority does not make a decision, a permit may still have been granted automatically; this is called a licence by operation of law or a fictitious licence (Article 4:20b Awb). A law or regulation must stipulate that a permit can be granted by operation of law. This applies, for example, for an environmental permit for a building activity (Article 3.9 of the Wabo). It also applies to service permits, unless a statutory provision provides otherwise. If the municipality exceeds the decision period of eight weeks (that can be extended by six weeks), the single permit for the building activity will be granted by operation of law if no decision has been taken before the end of the decision period.
Dutch Permit may be granted fictitiously
Pursuant to the Wabo, however, the municipality must formally announce and publish the permit that has been established by operation of law. The rules of the Awb apply. The permit has no direct effect, as its entry into force has been suspended during the objection period. During this period, an interested party can start an objection procedure. If the applicant wishes, he or she can request the lifting of this suspension period by means of a temporary injunction. The municipality must also publish the permit by operation of law. The applicant may request this.
Objection procedure and automatic license
The objection period for this fictitious single permit starts on the day after the day the decision is announced. Pursuant to Article 4:20c (1) Awb, the municipality must publish the permit within two weeks after it comes into force by operation of law. If this is not done, the objection period does not commence. The municipality may also be found to be in default for failure to publish the permit and will face a penalty if it remains in default of publishing the permit by operation of law.
It is possible that the administrative court remedies a defect in a decision by operation of law. There are examples of this in case law. This occurred in the following judgment of the District Court of Breda:
“On the basis of all the above, the District Court itself will provide for the case by granting a single permit – pursuant to Section 2.1(1)(a) and (c) of the Wabo – for the building plan as applied for on 6 December 2011 and the accompanying building plans” (Court of Breda, 30 January 2013, ECLI:NL:RBZWB:2013:BZ0877).