1.1.The college rejected this application with the decision of June 3, 2022 (hereinafter: the primary decision). With the contested decision of November 7, 2022 on the claimant's objection, the college stood by the rejection of the application.

1.2.The College responded to the appeal with a statement of defense.

1.3.The court heard the appeal at a hearing on September 5, 2024. Participating therein were: plaintiff and the agents of the college.

4.1.The laws and regulations important to the assessment of the appeal can be found in the appendix to this ruling.

5.1.The zoning plan "Dorpsgebied Stellendam en Havenhoofd 2011" (hereinafter: the plan regulations) applies. Pursuant to this, the zoning "Residential - 1" applies to the parcel as far as relevant. The parcel has the building indication "semi-detached" and a maximum gutter height of 4 meters applies.

5.2.The college refused the environmental permit because the building plan does not comply with the 2012 Building Code and reasonable standards of appearance.n

Section 2.10(1)(a) and (d) of the Wabo.

According to the contested decision, the plan is also contrary to the zoning planann

Section 2.10(1)(c) of the Wabo.

, because the maximum gutter height of 4 meters is exceeded.n

Article 18.2.1(a) of the plan rules.

The college does not want to cooperate with the building plan in deviation from the zoning plan.n

Section 2.12(1)(a)(2o) of the Wabo.

5.3.Claimant disagrees and has filed an appeal.

6.1.The College takes the position that the environmental permit was not granted by operation of law. First, according to the college, the decision period was validly suspended, so that a decision was made within the decision period. In the primary phase, the plaintiff was represented by an agent. It follows from the procedural documents that communication took place both with the claimant's agent and with the claimant. Moreover, the plaintiff submitted the application digitally via the Environment Counter (OLO), so that the decisions were also sent digitally. Several times during the procedure, the application was communicated electronically. Thereby, the plaintiff has made it known that it can be sufficiently reached by electronic means.

6.2.Although Section 4.3 of the Enabling Act for the Environment Act expressly excludes Section 4.1.3.3 of the Awb, which deals with the positive fictitious decision in the event of an untimely decision, from the moment of entry into force of the Environment Act, the moment, if any, at which the environmental permit was granted by operation of law in this case is prior to the entry into force of the Environment Act. After all, the decision period in these proceedings ended before January 1, 2024, so that pursuant to the Wabo, if this period is exceeded, the requested environmental permit was granted by operation of law. This means that the court will give an opinion as to whether the environmental permit came into being by operation of law.

Itis not disputed between the parties that, whether or not the building plan is in conflict with the zoning plan, the regular preparation procedure applies in any case. Either the building plan is not in conflict with the zoning plan, or if it is, Section 2.12, subsection 1 opening words and under 2o of the Wabo, read in conjunction with Section 4 opening words and part 1 of Annex II of the Environmental Law Decree (hereinafter referred to as: the Bor) gives the authority to grant an environmental permit for the building plan.

6.4.Pursuant to Section 4:20b, first paragraph, of the Awb, if a decision on the application for a decision is not made in time, the requested decision is made by operation of law. Pursuant to Section 3.9(1) of the Wabo, the competent authority shall decide on the application for an environmental permit within eight weeks from the date of receipt of the application. Under the second paragraph, the competent authority may extend this period once by a maximum of six weeks. The plaintiff, through his authorized representative, submitted the application digitally through the Environment Desk online on March 25, 2022, and the college thus received the application that day. The action of an agent (Article 2:1 of the Awb) has the effect that contact with the interested party is in principle through the agent. This also entails the principle of due care. With the letter and by e-mail dated April 14, 2022, the college requested additional information from the claimant's authorized representative, as referred to in Article 4:5 of the Awb. The court does not follow plaintiff's contention that college improperly requested the additional data requested. The college was reasonably entitled to do so. Pursuant to 4:15(1)(a) of the Awb, the decision period is therefore suspended from the day after that on which the college invites the applicant to supplement the application pursuant to 4:5 of the Awb, until the day on which the application has been supplemented or the period set for that purpose has expired unused. The college received additional information on May 13, 2022. By email dated May 16, 2022, the plaintiff's authorized representative indicated that, if requested, the plaintiff did not agree to narrow the dormer to three meters. The authorized representative additionally included the spatial justification for the building standards committee. The college subsequently indicated by email that the spatial substantiation had already been submitted to the building standards committee and that it did not agree. From March 26, 2022 (the day after receiving the application) to April 14, 2022, 20 days of the decision period elapsed. Subsequently, this deadline was suspended until May 13, 2022. From May 13, 2022 (the day the application was completed), the remaining period of 36 days began to run. The college made a timely decision with the June 3, 2022 decision.

6.5.Pursuant to Article 3:40 of the Awb, a decision shall not take effect until it has been published. Pursuant to Article 3:41, first paragraph, of the Awb, publication of decisions addressed to one or more interested parties shall be made by sending or delivering them. Pursuant to Article 2:14, first paragraph, of the Awb, an administrative body may send a message addressed to one or more addressees electronically to the extent that the addressee has made it known that it can be sufficiently reached by this means. The judgment of the Administrative Law Division of the Council of State (hereinafter: the Division) of October 26, 2022, ECLI:NL:RVS:2022:3088 states that it follows from the history of the creation of Article 2:14, first paragraph, of the Awb that "in order to be allowed to send a message electronically, it is required that the addressee has made it known that he can be sufficiently reached by that means. The legal text does not impose any requirements on the manner of notification. Disclosure may be more or less explicit. The addressee will have to indicate at which electronic mail address he can be reached. [...]" It can be inferred from the foregoing that the making known within the meaning of Article 2:14 of the Awb can be done both implicitly and explicitly. Although the explanatory memorandum does state that "for the time being" explicit notification must still be assumed, that text dates from more than fifteen years ago and since then electronic communication with the government has developed considerably. No decisive significance is therefore attached to that text.

6.6.The primary decision was sent and received both to Claimant's agent and Claimant himself by email dated June 3, 2022. It does not follow from the documents that an express request was made to receive the decision by mail. Nor was it made known that the agent did not wish to receive the decision by email. In view of the foregoing and the subsequent e-mail traffic between the authorized representative and the licensing authority, the plaintiff did not make it clear that he could not be reached electronically. As a result, the college correctly published the decision, so that it took effect.

6.7.In view of what has been considered above, the court finds that the environmental permit did not arise by operation of law because the decision to refuse the environmental permit was published in a timely and proper manner. Therefore, there was no reason for the college to publish an environmental permit granted by operation of law. This ground for appeal does not succeed. This means that the court will further address the substantive grounds of the appeal below.

7.1.It is not in dispute between the parties that the dormer is not completely permit-free for the activity of building and use in conflict with the zoning plan pursuant to Article 2, Annex II, of the Bor.

8.1.Pursuant to Article 18.2.1(e) of the planning regulations, the gutter height of main buildings shall not exceed the indicated gutter height. On the site of the plot, the maximum gutter height is 4 meters. Pursuant to article 2.6 of the plan rules, the gutter height is measured from the ground level up to the top of the gutter / drip line, the fascia board or an equivalent construction part. The court ruled, in line with the decisions of the Division, that this means that the planning legislator did not only consider the place where the gutter is installed to be decisive for the gutter height, but also the place where the water drips from or where a fascia board or similar structural part is installed. On the drawings accompanying the application, the dormer is 6.25 meters wide and provided on both sides only 0.5 meters from the side walls, so that the dormer occupies almost the entire roof surface in width. In addition, the dormer runs almost flush with the ridge at the top, so water must be drained from the top of the dormer. It follows from the detailed drawing that there is a gutter on the side of the dormer from which the water drips. In view of the foregoing, the court follows the board's position that, in view of the definition in the plan rules, the top of the dormer here determines where the gutter height is located. Each building plan must be assessed on its own merits. The situation in the ruling cited by the plaintiff is not entirely comparable to the present building plan, so that this cannot benefit the plaintiff. In view of this, the court finds that the building plan exceeds the maximum gutter height prescribed in the zoning plan.

Pursuant to Article 18.2.1, under i, of the plan rules, if the gutter height is exceeded, a dormer is possible if the dimensions described in that article are met. This concerns the following points: the distance to the eaves, the ridge and the sides of the roof plane is at least 0.5 m, the building height of the dormer, measured from the base of the dormer, is at most 1.75 m, the width of dormers at the front or side of the main building is at most 50% of the roof plane. Given the drawings accompanying the application, the distance requirement of 0.5 meters from the ridge is not met. Furthermore, the width of the dormer is not at most 50% of the roof plane.

8.3.This means that the Board was right to also classify the application as an application for the activity of use contrary to the zoning plan, as referred to in Article 2.1, first paragraph, under c, of the Wabo.

9.1.The college does not want to cooperate with the plan, because such an expansion always detracts from the spatial quality. At the hearing, the college explained that this relates in particular to a front dormer wider than 50% of the roof area. The plaintiff has rightly noted that in the Policy Rule on Deviation Policy for Spatial Planning 2015 under 3.4 reference is still made to the Goeree-Overflakkee 2015 Welstandsnota. This static reference is outdated because, at the time of interest, the new Welstandsnota Nota Ruimtelijke Kwaliteit 2016 had now come into effect. However, this cannot help the plaintiff, because the college interpreted the policy rule in such a way that they considered it to be a reference to the new building standards memorandum and the building standards policy had not been changed as far as relevant here. Regarding the height, the college explained that it does want to deviate from the plan rules insofar as the dormer is flush with the dormer of the adjacent property. However, the width of the dormer envisaged in the application is still too far-reaching a deviation from the zoning plan, since instead of the prescribed maximum width of 50% of the roof surface, it concerns a dormer over almost the entire width of the roof surface. That, as explained at the hearing, is in no way a subordinate building component on the roof plane in terms of dimensions. In what the claimant has argued the court, given the policy space available to the college, sees no ground for the opinion that the college could not reasonably take the position that the building plan is in conflict with good spatial planning. The adverse consequences for the claimant of refusing to cooperate with the building plan to that extent have been sufficiently considered by the college in the decision-making process. The issue of whether there are still possibilities to modify the building plan was discussed at the hearing. The college has indicated that this is problematic because the claimant has already realized the dormer. The college considers the requested dormer too wide anyway. The plaintiff has indicated an unwillingness to adjust the width, so there is no room for an adjustment that could possibly be permitted in deviation from the zoning plan.

10.1.Under Section 2.1, first paragraph, opening words, under a, of the Wabo, it is prohibited to build a structure without an environmental permit. However, under Section 3, opening words, part 3, of Annex II of the Bor, an environmental permit for the activity of building is not required if this activity concerns a dormer in the front roof plane, provided that the following requirements are met:

• reasonable welfare requirements are not applicable;

• fitted with a flat roof,

• measured from the base of the dormer not higher than 1.75 m,

• underside more than 0.5 m and less than 1 m above the eaves,

• top more than 0.5 m below the roof ridge, and

• sides more than 0.5 m from the sides of the roof plane; [...].

10.2.It follows from the construction drawings that the claim that the dormer is located more than 0.5 meters below the roof ridge is not plausible. In addition, the other conditions must also be met. For example, the reasonable requirements of aesthetics must also not be applicable. It is not in dispute that the reasonable requirements of prosperity do apply here, so that the activity is not permit-free on this basis either. This means that the claimant needs an environmental permit for the activity of building, whereby the assessment framework in Section 2.10(1) of the Wabo applies. In view of that assessment framework for the activity of building, the building plan must also comply with the Building Decree 2012n

Section 2.10(1)(b) of the Wabo

and the reasonable standards of welfare. The court will address these grounds below.

10.3.This ground of appeal does not succeed.

11.1.The aesthetics advice dated April 12, 2022 states that the plan is contrary to reasonable requirements of aesthetics, unless the width is limited to 3 meters, in accordance with the aesthetics note. As far as the distance to the ridge is concerned, the plan can be deviated from, provided the height of the adjacent dormer is maintained.

11.2.It is established case law that the building standards test must, in principle, focus on the building possibilities offered by the zoning plan in force. It follows from the general nature of the building standard requirement that the building possibilities applicable to the land must be used as the starting point in the building standard test.

11.3.As considered under 8.1, the circumstance that the application complies with the dimensions of Article 18.2.1 of the planning regulations does not arise because the dormer is 6.25 meters wide. With this dimension, the maximum width of 50% of the roof plane is not met. To that extent, the building plan already does not comply with the maximum construction possibilities of the zoning plan. Therefore, to that extent, the question raised by the plaintiff as to whether the building plan opinion interferes with the building possibilities of the zoning plan is also irrelevant here. However, this does not alter the fact that if the claimant submits an application whereby the dormer is 3.625 meters wide (50% of the total roof area of 7.25 meters), the college will have to consider whether the building regulations of the building stand policy, in which the dormer may be a maximum of 3 meters, interferes with the planning regulations.

11.4Although the Municipal Executive is not bound by a recommendation on building standards and the responsibility for building standards assessment lies with the Municipal Executive itself, it may rely on that recommendation, after checking whether it has been drawn up in a careful manner, the reasoning in it is comprehensible and the conclusions drawn are consistent with it. This obligation is laid down in article 3:9 of the Awb for the legal advisor and follows from article 3:2 of the Awb for other advisors. In principle, the adoption of a welfare recommendation does not require further explanation. This is different if the applicant or a third interested party has submitted an opinion from another person or body deemed to be competent, or has brought forward concrete indications for doubts about the care with which the opinion was drawn up, the comprehensibility of the reasoning followed in the opinion or the consistency of the conclusions with it.

12.1.The college requested additional information with the letter dated April 14, 2022. The letter also stated that the plan does not comply with the 2012 Building Code. The Rc values of the dormer do not comply with sections 5.6 and 5.3 of the 2012 Building Code. The plaintiff has been given the opportunity to amend the plan. Claimant's claim that he was never asked for additional information cannot be followed given the letter dated April 14, 2022. The letter was sent to his agent, of which it has already been considered in recital 6.4 that the effect of acting as an agent (Article 2:1 of the Awb) is that, in principle, contact with the interested party goes through the agent. In the contested decision, reasons were given for not complying with Section 5.3 of the 2012 Building Decree. The thermal resistance of the vertical exterior partition construction with 4.5 m2 K/W does not meet the required 4.7 m2 K/W and the thermal resistance of a horizontal exterior partition construction with a value of 6.0 m2 K/W does not meet the required 6.3 m2 K/W. To the extent that the plaintiff brought up at the hearing that he could have solved this with drywall, he should have made this known at the time of the application. In view of this, the court is of the opinion that, based on the information and documents available with the application, the board could deem it plausible that the building plan violates the 2012 Building Code. The fact that the contractor does nothing but build dormers does not mean that the dormers always comply with the 2012 Building Code. In view of the foregoing, the Board was correct in assuming that, to that extent, a ground for refusal exists that prevents the granting of an environmental permit. This ground for appeal therefore does not succeed.

13.1.The Claimant merely submitted photographs without naming specific addresses. It is established case law of the Division that merely submitting photos of the cases the claimant is relying on, without naming addresses, is insufficient for a successful reliance on the principle of equality (see the Division's decision of 25 July 2007, ECLI:NL:RVS:2007:BB0391). In view of this, the Board was able to take the position that no equal or comparable cases were put forward that had to be included in the assessment. Also after the expiration of the appeal term and, if that term has been given, after the expiration of the term referred to in Article 6:6 of the Awb, in view of Article 8:58 of the Awb, new arguments may be put forward and documents, in order to substantiate a previous appeal, may be submitted, unless this is contrary to a good procedural order. This means that an appeal to the principle of equality made in the objection or appeal may be substantiated at a later point in the proceedings by citing concrete equal cases. In this case, the plaintiff did so only at the hearing. That is contrary to due process because the college can no longer adequately respond to it. The foregoing means that the court sees no ground in what the claimant has submitted for the opinion that the college has decided in violation of the principle of equality. This ground for appeal does not succeed.