Construction freeze? Discover your rights and options

Questioner

Today I received a building freeze from the municipality on the construction of a garage/storage room at my house. My municipality advises on its website to consult the environmental counter for construction/renovation plans and to perform a permit check. This should show whether or not an environmental permit must be applied for. In my case, the outcome was that the building to be built is permit-free. I did not doubt the outcome and started building. Now I have the municipality on my roof. I have a green strip next to my plot that is not accessible/accessible (wooded areas). According to the government's permit checker, my plot borders on 'non-publicly accessible area'. However, the municipality now says that the green strip is part of the road. So that is a different interpretation of the green strip next to my plot. Next to my plot is the green strip (2 meters wide), then a footpath follows, followed by a small green strip with trees, after which the street comes. Now I have delved into the matter but I can't figure it out. I have now seen that there is a traffic destination on the ground, so that could be a road. However, it is a two-meter wide non-accessible/enterable green strip. This difference in assessment of the green strip results in building/not building on backyard area. If the green strip is not a 'publicly accessible' area, then I am allowed to build next to my house (then backyard area). If the green strip is a publicly accessible area, then I am not allowed to build there. What is now legally the correct assessment of the green strip next to my house? What steps can I best take. The government's permit checker gives a different interpretation than the policy of my enforcement officer

Lawyer

Based on the consideration below of the Judicial Division of the Council of State from https://www.raadvanstate.nl/uitspraken/zoeken-in-uitspraken/tekst-uitspraak.html?id=76668, I fear for you that the enforcer is right: '4.1. The property boundary partly borders on land designated as 'Park-arboretum'. This strip of land can, as the court correctly considered, be regarded as a publicly accessible area as referred to in Article 1, first paragraph, of Annex II of the Bor. The greater part of the property boundary borders on land designated as 'Garden'. In this case, this strip of land can also be regarded as a publicly accessible area as referred to in Article 1, first paragraph, of Annex II of the Bor and the court correctly saw no grounds for the judgment that the property boundary is exempt from an environmental permit pursuant to Article 2, opening words and under 12, of that Annex, since the condition that the property boundary must be located more than 1 m from publicly accessible area is not met. In this context, it is important that the land bordering the property boundary is in fact part of the generally accessible park-arboretum. In addition, the land bordering the property boundary is not used as a garden for a house and the owner of the park arboretum is also the owner of the land bordering the property boundary. The land is therefore not the property of the applicant for the property boundary. It is also important to note that the park arboretum does not contain any signage indicating that the land bordering the property boundary placed by [appellant] is not intended to be entered by visitors to the park arboretum. The land located next to the property boundary is, as also explained by the board at the hearing of the Division, accessible to the public for recreational purposes as part of the park arboretum. The fact that part of the land bordering the plot is planted with rhododendrons does not mean that the property boundary does not border land that is generally accessible to the public.'

Lawyer

I therefore advise you to still apply for a 'building permit'. Furthermore, it is of course very frustrating for the citizen to be provided with government aids such as 'the permit check', which do not work well in practice and can thus lead to unnecessary costs and also damage on the part of the citizen!

Questioner

Thank you very much for your response! I forgot to mention in the above message that the municipality has already carried out a legalisation investigation with the result that my associated building cannot be legalised under the existing policy. The piece of land on my plot has a garden destination and it is not allowed to build on it higher than 1 metre (not even a fence). It will therefore have to be demolished. How can I interpret the explanatory memorandum BOR Appendix II. It states: 'To increase practical manageability, the terms 'road' and 'public green' are incorporated into the overarching term 'publicly accessible area'. Further on in the explanation it says 'Accessible means that the public area must be suitable for entering. Strips of residual greenery that are not intended for entering are not accessible and therefore cannot be regarded as 'publicly accessible area' within the meaning of this regulation.

Lawyer

What you can do is simply apply for the permit. It will then probably be refused. You then file an objection and state the following grounds: the permit was refused on the wrong grounds because it concerns a building that does not require a permit, in which case you can then use your arguments that your garden borders on a non-publicly accessible area and the permit application should have been refused because your building does not require a permit. In case this defence does not succeed, you can still use the second objection that your application also includes an application for deviating use, so that on this basis you may use your garden as a 'garage/storage' and can also finish it.