Do not rely on electronic announcements on www.overheid.nl
If a decision is not published or is not published in the right manner, it does not come into force (section 3:40 of the Dutch General Administrative Law Act (“Awb”). A decision that concerns one or more interested parties must be notified by sending or issuing it to those parties, including the party that petitioned the decision (section 3:41 Awb). Decisions that are not specifically aimed at one or more interested parties must be published in a government-issued bulletin or in a daily newspaper or free local paper. Unless the law prescribes otherwise, electronic announcements may only be published in government-issued bulletins. If only the substance of a decision is published, the decision must be made available for inspection at the same time and the publication must state where and when the decision will be available for inspection. An increasing number of government organisations are joining the government’s national website. If you take out an e-mail subscription, you will be alerted of relevant publications concerning the area surrounding the postcode you input.
However, this alert service offers false certainty, as is evident from the decision rendered by the Administrative Jurisdiction Division on 13 December 2017.
The municipality in question had issued an integrated environmental permit for a dormer window and had only announced this on its own website. Normally speaking such announcements are passed on to www.overheid.nl, but due to technical interface difficulties that did not happen in this case. The appellant had subscribed to the e-mail service of www.overheid.nl in order to stay abreast of developments in the area of his parcel of land, but as a result of the technical difficulties he was late in filing his objection. During the proceedings, the municipality relied on its statutory obligation to publish the application (section 3.8 of the Dutch Environmental Permitting (General Provisions) Act), which it had satisfied and stated that it was the appellant’s responsibility to stay informed of the progress of the permit application.
The Division ruled that the mere circumstance that the appellant had subscribed to the e-mail service of www.overheid.nl did not mean he could legitimately expect that he would be notified of all decisions that could be relevant to him. This did not change the fact that it was his own responsibility to stay informed of the progress of the permit application and that he bore the risk of the consequences of his choice to rely on the e-mail service of www.overheid.nl. This is not altered by the circumstance that there were problems with the technical interface between the municipality’s website and www.overheid.nl which meant that for an extended period of time in 2015 decisions of the municipality were not passed on to www.overheid.nl, including the period in which the integrated environmental permit disputed by the appellant was issued.
This decision confirms that the public must continue to consult many different sources, as it will not always be clear where an administrative body publishes notices. An administrative body’s duty to disclose information does not mean that the public does not bear any responsibility of its own: it has an extensive duty to examine notices of decisions that are relevant to it.
