Requirements for the permit application procedure
Depending on the type of permit, there will be requirements for submitting an application. The application must contain the name, address, date and type of permit, as well as the data and documents required to make a decision on the application (Article 4:2 of the General Administrative Law Act). A form may be prescribed for submitting the application (Art. 4:4 Awb). Sometimes costs are owed, such as fees for an environmental permit. A discussion may arise on the provision of confidential data. Article 4:3 of the General Administrative Law Act (Awb) provides: the applicant may refuse to provide data and documents insofar as their importance for the decision of the administrative body is outweighed by the importance of respecting personal privacy, including the protection of medical and psychological research results, or by the importance of protecting company and manufacturing data.
The government is not obliged to send an acknowledgement of receipt; it must do so in the case of an electronic application (Article 4:3a of the Awb).
Incomplete application; permit application not to be processed
In Article 4:5 of the General Administrative Law Act, the legislator has formulated a comprehensive system for deferring consideration of an application. The application can be deferred if it is so incomplete or defective that it must be supplemented. However, the applicant must be given the opportunity to supplement his application before an application can be set aside. Contact a lawyer in time if you think that the authority has wrongfully refused to process your application. It is not part of this legal permit procedure for the municipality to introduce a new reason for not dealing with an application in a policy or by-laws. Municipalities cannot, therefore, set additional grounds by decree on which an application can be set aside.
The licensing authority may decide not to process the application if:
- the applicant has not complied with any statutory requirement for handling the application, or
- the application is refused in full or in part on the basis of Article 2:15 paragraphs 2 and 3 of the General Administrative Law Act (Awb), or
- the data and documents supplied are insufficient to assess the application or to prepare the decision, and provided that the applicant has had the opportunity to supplement the application within a term set by the administrative authority (Article 4:5 of the Awb).
Consequences of incomplete permit application
An incomplete application may result in the application being rejected or the permit applied for being refused. However, the applicant must always first be given the opportunity to supplement his application. A repair time may be set and the consequences of the incompleteness of the application must also be stated. The restitution period has a suspensive effect on the period within which the municipality must decide on the application (the decision period). In most cases this is 8 weeks. If data are missing, this period is suspended after notification of the authority and it takes longer before a decision is made on the application.
Decision period after application for permit
The decision period is the maximum period that an administrative authority may use to decide on the application. It is not a deadline, but a period of order. The period starts when the application is received. In principle, the decision must be made within a reasonable time after receipt of the application, if no specific time limit is indicated by law (Article 4:13, paragraph 1 of the General Administrative Law Act). Depending on the type of decision, this can be a period of a few weeks or a few months and everything in between; in exceptional cases, a period of days can even be considered, for example in the case of an event permit. The processing time for a KSA licence for a one-off lottery above EUR 4,500 is usually 3 to 4 weeks. In any case, the authority must make a decision within 8 weeks or announce a new decision period. In most cases, the decision period can be extended by up to 6 weeks.
Suspension of decision period for permit application
If the applicant for the permit is in competition with other applicants, it is annoying if the processing of the application is suspended. This is an extra reason to ensure that the permit application meets all requirements and all documents accompanying the application have been submitted correctly. The licensing authority may suspend the decision period (Article 4:15 of the General Administrative Law Act) if:
- the applicant is requested to supplement the application, until the day on which the application is supplemented or the period set for that purpose has expired without being used;
- necessary information has been requested from a foreign authority, until the day on which this information has been received or until the day on which further delay is no longer reasonable;
- during the period for which the applicant has agreed to a postponement in writing;
- as long as the delay can be attributed to the applicant;
- as long as the administrative body is not able to issue a decision due to force majeure.
- The authority must notify the applicant as soon as possible of the end of the postponement, stating the period within which the decision must still be made.
Consequences of not deciding on an application for a permit in time
If the authority does not decide in due time on the application for the permit, then:
- a permit may have been granted by operation of law (depending on the type of permit);
- there may be a fictitious refusal, against which it is possible to lodge an appeal with the court (Article 8:55b of the Awb), whereby it is possible to request the administrative court to order the authority to decide on the application on pain of a penalty payment.
- the authority has an obligation to provide information when a decision is taken;
- the applicant may give notice of default to the authority handling the application and claim a periodic penalty payment after the expiry of a 2-week period;
- in urgent cases, a preliminary injunction can also be requested from the administrative court by means of direct appeal.
A permit by operation of law
If the administrative authority does not make a decision, a permit may still be granted automatically; this is called a permit by operation of law or a fictitious permit (Article 4:20b of the Awb). A law or regulation must provide that a permit can be obtained by operation of law. This is, for instance, regulated for environmental permits for the activity of building (Art. 3.9 Wabo). It also applies to service permits unless a statutory provision stipulates otherwise. If the municipality exceeds the decision period of eight weeks (possibly extended by six weeks), the environmental permit for the activity of building, for example, will be granted by operation of law if no decision has been taken before the end of the decision period. Incidentally, a permit by operation of law can only come into being in the case of a regular procedure. The objection period for this fictitious environmental permit starts on the day after the day on which the decision was announced. Pursuant to Article 4:20c, paragraph 1 of the General Administrative Law Act, the municipality must publish the permit within two weeks of it coming into effect by operation of law. It is sometimes difficult to determine whether a permit has been granted by operation of law.
Ask our administrative law lawyer for advice.
Formal notice of default in the event of a late decision on a licence application
After the expiry of the decision period, the applicant may give the administrative authority notice of default. This can be done in a letter in which the applicant states that the decision period has expired and that a period of two weeks is given in which to make a decision (an example of the notice of default is included in the appendices to this book). The government then has two weeks in which to make a decision. If it fails to do so, the applicant is entitled to a penalty payment (Article 4:17 of the Awb). The amount of the penalty depends on the duration of the delay. The following amounts apply when the periodic penalty payment is due:
- 20 per day for the first 2 weeks;
- 30 per day for the next 2 weeks;
- 40 per day for the remaining days.
The periodic penalty payment shall not exceed 42 days and shall not exceed € 1,260. The right to a penalty payment has been abolished for Wob requests (Wet openbaarheid van bestuur). The administrative body must take a separate decision on whether the penalty is due.
Decision on permit or refusal of the application for a permit
If the decision on the application (Article 4:2, paragraph 2 of the General Administrative Law Act) is taken and the permit is granted, the application procedure is terminated. That decision is then the permit. The applicant may be unhappy with the conditions attached to the permit. For example, if the permit is limited in time or if certain (burdensome) conditions are attached to the permit. Conditions are regularly attached to permits. In that case, they must follow from the applicable regulations for the permit. A lawyer specialising in administrative law can advise you whether any regulations are unjustified. If this is the case, an objection must be lodged against the decision within 6 weeks of the date of the decision. The objection does not have a suspensive effect. This means that during the objection procedure, the permit can simply be used at the expense and risk of the permit holder.
Please feel free to send us any questions about permits.
Objection to refusal of permit
If a permit is refused, the applicant can lodge an objection within 6 weeks. This initiates the objection procedure. In urgent cases, there may also be grounds to request a preliminary injunction from the administrative courts at the same time as the objection. When refusing a permit, it is advisable in any case to seek advice from a lawyer specialising in administrative law if you have doubts about whether the refusal is justified.