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Enforcement at the door!

The government takes care of the enforcement of the rules you have to comply with as a company. Companies usually call us because of alleged nuisance problems due to noise, odour, vibration, traffic and parking, animal transport, asbestos problems, alleged illegal new buildings or expansion of buildings without an environmental permit, or the use of business premises or business park for other than permitted business activities.

Taking timely action

A company that has been imposed an administrative enforcement measure or is confronted with the (intended) imposition of an administrative fine by a municipality, regional executive service or inspection service, must take action in good time. This is possible, because after an observation, a letter will almost always follow stating the violation(s) observed and a request to submit a view on this. If the case is urgent, the authority may decide to skip this step, in which a preliminary warning letter is sent first, and to take an immediate enforcement decision or even measures.

In any case, this is an important moment that must be adequately responded to, because it is legally regulated that penalty payments can be forfeited very quickly.

In some cases, the enforcing body will apply administrative coercion instead of imposing a penalty. This usually happens when there is an urgent interest, so something must be done immediately. For example, cleaning up pollution, nailing down a pub due to a suspicion of drug trafficking or taking acute measures regarding the transport of animals.

In the vast majority of cases, you will receive a warning letter that is formulated in such a way that the observed infringement must be brought to an end within a specified period. The letter will also indicate that, if the situation remains unchanged, a penalty decision will be taken, which will always include a hefty penalty payment and short recovery periods in order to exert considerable pressure. In some cases, we see that the government explicitly indicates that an application must be submitted for a permit, such as an environmental permit, to legalise a violation. In practice, this does not mean that such permission will actually be granted. We have seen that even in such cases, the requested environmental permit is sometimes refused. The content of the reasoning for the refusal is important in this respect.

Emergency procedure

In many cases, the imposition of a penalty is (very) hard on the company. Once a penalty or administrative enforcement decision has been imposed, a temporary provision requesting a suspension of the enforcement decision is often needed. After a suspension, the pressure is off and the further course of the objection procedure can be awaited calmly. The timely submission of a request for suspension can prevent the forfeiture of penalty payments as a result of the applicable legislation at an early stage.

The request for an injunctive relief is also referred to as an administrative law injunction. On the basis of the request for injunction, the judge in preliminary relief proceedings will first assess whether there has indeed been a violation. Next, the judge in preliminary relief proceedings examines whether the objections of the company concerned are well-founded on the basis of a notice of objection or an appeal that is linked to the request for suspension.

What does HABITAT do?

Despite the major interests and costs that can be involved in an enforcement procedure, a lot goes wrong on the government side. Therefore, in practice, it is always wise to have a received (intended) enforcement decision legally assessed and, if necessary, to submit a view or an objection.

HABITAT assesses to what extent one or more infringements have indeed taken place and advises on whether it is wise to comply with the order to cease the infringement or to take further action against the enforcement procedure. The outcome may also be that there is a chance that the violation can be legalised with an environmental permit or other permission from the government. It regularly turns out that establishing a good contact with municipal officials is an efficient way to find a solution, whereby the observed infringement is legalised or, with good working agreements, the infringement can be ended without a formal imposition of a penalty.

Of course, HABITAT also assesses whether a penalty payment imposed meets the legal requirements and, in particular, whether its contents are sufficiently clear and discusses with you whether a suspension request should be submitted to the judge in preliminary relief proceedings.