Administrative Enforcement 101 on Bonaire, St. Eustatius and Saba (BES) – order subject to a penalty, administrative enforcement action and construction stop orders

In practice, we are increasingly seeing enforcement action against (allegedly) illegal use of buildings and land in the Caribbean Netherlands (Bonaire, St. Eustatius and Saba). This often follows after a long process—for example, because no building or environmental permit was ever granted, or because a particular use has existed for years. Government bodies can enforce in different ways: 1) an order subject to a penalty (last onder dwangsom): you are given a remediation/compliance period; if you do not remedy the violation in time, you forfeit a monetary amount; 2) an administrative enforcement action (last onder bestuursdwang): the government ends the violation itself and can recover the costs from you. A separate instrument that can cause significant delay and costs is building freeze (bouwstop). Below, we explain these instruments and identify the key points to keep in mind if you are confronted with enforcement.

Enforcement action

A government body may—and in many cases must—act when there is a violation of rules. This may include, for example, building without a building permit, or using land without permission or in violation of the spatial development plan. Courts often formulate the starting point as follows:

“In light of the general public interest served by enforcement, where a statutory provision has been violated, the administrative authority that has the power to act by means of an administrative enforcement action (last onder bestuursdwang) or an order subject to a penalty (last onder dwangsom) must, as a rule, make use of that power. Only under special circumstances may the administrative authority be required to refrain from doing so. This may be the case where there is a concrete possibility of legalization. Further, enforcement action may be so disproportionate in relation to the interests it serves that, in that specific situation, enforcement should be refrained from.”

There are, therefore, a number of reasons why the government cannot take enforcement action in every case. The two most important are: 1) a concrete possibility of legalization (concreet zicht op legalisatie); 2) proportionality (evenredigheid).

For a concrete possibility of legalization, it depends on which rule has been violated. In some cases, such as construction matters, the government must first investigate on its own initiative whether a permit can be granted. If the government does not do so, that can be a reason to challenge an enforcement decision. For other violations, it may be necessary to submit a permit application, and the government must be willing to cooperate in granting that permit.

Another important reason to refrain from enforcement is where enforcement action in the specific circumstances would be disproportionate. For example, where the violation is limited, or where the objective of enforcement can also be achieved through a less intrusive measure. In practice, this is not readily accepted.

Steps the government may take

If the government becomes aware of a violation, it can send supervisory officials/inspectors (toezichthouders) to establish the violation. In many cases you must cooperate with supervision, but you are allowed to ask for identification, the purpose of the visit, and the statutory/legal basis. Depending on the violation, these officials may request information or enter locations. If they conclude that there is a violation, a order subject to a penalty or an administrative enforcement action may be imposed.

Order subject to a penalty (last onder dwangsom)

A government body may impose an order subject to a penalty. If it determines that there is a violation of a statutory provision – for example, building without a permit, using land in conflict with the spatial development plan, or operating a business without the required permits – then it may take enforcement action. Usually, it does so by imposing an order subject to a penalty. The order describes what the violation is and what must be done to undo/remedy it (for example, stop the use of a building or plot or remove a part of a building or an object). If you do not comply within the specified time, the penalty payment may be collected. If the violation has still not been remedied afterward, a new (possibly higher) penalty payment in an order subject to a penalty may follow, or administrative enforcement action may still be applied.

Administrative enforcement action (last onder bestuursdwang)

A government body may also impose an administrative enforcement order. This means that the government itself ends the violation, for example, by demolishing something that was built without a permit. In principle, a period must be given within which the person concerned can end the violation themselves, because under administrative enforcement, in addition to the costs of the action itself, the costs of official/administrative support may also be charged to the violator.

In an exceptional, urgent situation (under strict conditions), the administrative body may intervene immediately (emergency administrative enforcement; spoedbestuursdwang). The decision has to be put in writing afterward, and the costs may be recovered from the violator.

Building freeze (bouwstop)

A special instrument that is often used is the building freeze order. On the BES islands, a building freeze order may be imposed if it is necessary to immediately halt works. The aim is to prevent the illegal situation from expanding in scope. This also allows time to investigate whether legalization is possible or whether further enforcement is necessary. Measures may also be taken to prevent or end risks to health or safety. In practice, this often begins with an oral instruction that construction works must be stopped immediately, followed later by a written decision. In that case, ask immediately for written confirmation.

Because a building freeze halts construction, there is often urgency: downtime typically involves high costs. If you want to resume construction, it may be necessary to promptly file an administrative objection (bezwaar) or appeal (beroep) against the construction stop order and submit a request for interim relief (voorlopige voorziening; suspension). The court may suspend the building freeze (in whole or in part) after weighing the interests of the builder and the government and giving a preliminary view on lawfulness of the building freeze. Building in violation of a building freeze can lead to (additional) enforcement action and costs.

Decision in writing

If a government body takes enforcement action, this must be communicated in writing. This means the government must describe what the violation is, what must be done to end the violation, by what date this must be done, and the amount of the penalty payment and/or that administrative enforcement action will be applied. It is important to file an objection or appeal in time. Always check the decision to see which legal remedy is available and what deadline applies (often: six weeks). In urgent cases, interim relief may also be appropriate. During interim relief, the court is asked to temporarily suspend the decision.

Have you been confronted with an order subject to penalty, administrative enforcement action, or a building freeze?

Checklist (do this immediately):

1) Note the compliance period (begunstigingstermijn) and the legal-remedies deadline (rechtsmiddelentermijn) stated in the decision.

2) Gather permits, photographs, and correspondence.

3) Request the file and assess whether legalization is possible.

Paul de Lange (administrative law specialist)
T: +5997011030
E: lange@vaneps.com