It was argued before the Administrative Jurisdiction Division of the Council of State that the court should have declared that the Municipal Trees Bylaw [Bomenverordening] – the basis for the municipality refusing to fell the tree – should have been declared inapplicable on the grounds of the right of action [vorderingsrecht] provided for in Section 5:42 of the Dutch Civil Code [Burgerlijk Wetboek]. Although the General Administrative Law Act [Algemene wet bestuursrecht, Awb] prevents appeals against generally binding provisions (such as this Trees Bylaw), that does not preclude the binding nature of, in this case, the Trees Bylaw being called into question in an appeal against an appealable implementing decision [uitvoeringsbesluit], in this case the refusal to issue an environmental permit. This is sometimes referred to as the procedural test [exceptieve toetsing]. To come back to the right of action: the Dutch Civil Code states that it is not permissible to have trees, shrubs, or hedges within a certain distance from the boundary of another party’s property unless the owner of that property has granted consent or if the property is a public road or a public waterbody. For trees, that distance is basically two metres, but a shorter distance may, for example, be permitted by a bylaw. In this case, the Municipal Trees Bylaw stated that the distance for trees was 0.5 metres.

There was no dispute between the parties that the old beech tree was within 0.5 metres. It was also clear that the neighbours would not invoke time limitation against one another, which might otherwise have impeded the right of action. The legal remedy of time limitation could also not be applied by the court ex officio. In other words: if the neighbours did not invoke it, then the conditions of Section 5:42 of the Civil Code would have been met. That meant that the neighbours were subject to the obligation under civil law to remove the old beech tree. The right of action laid down in the Civil Code is not included in the Trees Bylaw and cannot therefore be taken account of in the weighing up of the interests under public law. According to the Administrative Jurisdiction Division, refusal of the environmental permit frustrates the right of action and the obligation to remove the tree cannot be met without breaching the Trees Bylaw. In that light, the Administrative Jurisdiction Division concluded that the requested permit should have been issued with the Trees Bylaw being partly inapplicable.

In short, this ruling is a provoking one as regards actual practice. Where administrative law practitioners still sometimes like to see the civil law world as a separate reality, it is clear that it can lead to clashes – and one cannot say in advance that the public-law world will prevail. In this case, the Trees Bylaw – probably like many in the Netherlands – was not tailored to the right of action provided for in Section 5:42 of the Dutch Civil Code. Due to the conflict with the higher rules – in this case the Dutch Civil Code – the Trees Bylaw was left partly inapplicable. As a result, the neighbours could still, harmoniously, remove the tree. Although they will need to wait until the Municipal Executive has taken a new decision on an objection. Despite the explicit instruction to issue the permit after all, the Administrative Jurisdiction Division did not want to step into the shoes of the Municipal Executive because the environmental permit can still be made subject to certain rules. Our expectation is that this clear ruling has in fact dispensed with the dispute. In short, the tree will be removed and the two neighbours will be happy. It is now up to municipalities to check whether their bylaws are futureproof in this regard. Don’t hesitate to contact us for more information or assistance.

You can read the ruling (16 August 2017) by the Administrative Jurisdiction Division of the Council of State here.