Building on the BES islands: easier assessment of building permits

Some time ago, the Court of Bonaire delivered a ruling regarding which requirements may be considered in the assessment of a building permit. For building permits, a fixed assessment framework applies: the permit must be granted if the application complies with this framework. Due to a recent judgment by the Court, this assessment framework, especially in the area of technical building aspects (ceiling height, dimensions, fire safety, and similar requirements), has become more limited. This has concrete consequences for the requirements that the Executive Council may impose on contractors, developers, and other parties in the construction sector.

Assessment of Building Permits

Applications for building permits on the BES islands (Bonaire, Sint Eustatius, and Saba) are assessed under Article 2.10 of the Act on Public Housing, Spatial Planning and Environmental Management BES (Wet volkshuisvesting, ruimtelijke ordening en milieubeheer BES). In summary, five requirements must be met to receive a building permit:

1) The construction plan complies with the BES Building Decree (BES Bouwbesluit) (technical building requirements).

2) The construction is not in conflict with a spatial development plan (for Bonaire: the Spatial Development Plan Bonaire (Ruimtelijk Ontwikkelingsplan Bonaire)).

3) No monument permit is required, or such permit has been granted.

4) The construction plan does not conflict with reasonable requirements of aesthetics, insofar as an aesthetics memorandum (welstandsnota) applies.

5) The construction plan complies with the provisions of the building and housing regulation (bouw- en woningverordening).

If a building permit meets these five criteria, the permit must be granted. If the permit fails to meet any of these criteria, the permit must be denied.

Thus, the assessment consists of two tests:

1) a technical test (how the construction is carried out), and

2) a spatial planning test (whether the construction plan may be realized at this location according to the spatial development plan).

The BES Building Decree

The BES Building Decree (BES Bouwbesluit) contains provisions for construction and for the use of buildings on Bonaire, Sint Eustatius, and Saba.

For new development, technical requirements apply, but these are often formulated in very general terms. The details are largely left to the islands themselves.

An example of such a general formulation is Article 2.1 of the BES Building Decree:

“A structure has a construction that is sufficiently resistant to combined permanent load, variable load, and wind.”

Naturally, the practical implementation may differ per island. For Saba and Sint Eustatius, stricter requirements may apply due to hurricane risks, while this is less relevant on Bonaire. The islands are therefore expected to further specify these requirements themselves, for example through the building and housing regulation.

Conflict with the Spatial Development Plan

A spatial development plan also contains rules regarding construction, such as the maximum building height, the percentage of a plot allowed to be built, the location of buildings, and possibilities for deviations from the rules of the spatial development plan.

Bonaire has a spatial development plan. Sint Eustatius has had a spatial development plan since 21 September 2023 and for Saba, a spatial development plan is in preparation.

A building permit must comply with the rules in the spatial development plan, unless the Executive Council is, under the plan, authorized to deviate from them, and wishes to do so.

Monument Permit

For protected monuments, in addition to a building permit, a monument permit is required. This follows from the Monuments Act BES (Monumentenwet BES) and the local ordinances based on this act. In the case of work on historic or old buildings it is always important to check whether the building is designated as a monument. Additional rules may then apply regarding alteration or demolition.

Conflict with Reasonable Aesthetic Requirements

The Island Councils may adopt an aesthetics memorandum (welstandsnota) with rules concerning the appearance of structures. These may concern the use of color, design, or integration with the surroundings.

Currently, there are no aesthetics memoranda applicable on the BES islands, so construction plans cannot be assessed on this aspect.

Building Regulations

Bonaire and Sint Eustatius have building and housing regulations (bouw- en woningverordeningen). A building permit must also comply with the requirements set out in these regulations. This regulation also contains technical requirements, as well as requirements in which way an application needs to be filed.

The judgment of the Court of Bonaire concerned the question whether the Executive Council was allowed to use an old Curaçao decree to impose technical requirements, such as minimum wall or ceiling height, as a ground of the technical assessment of a building permit. The Court ruled this was not permitted. The BES Building Decree (BES Bouwbesluit) does not contain a provision requiring a minimum wall height. The building and housing regulations contain no such requirement either. Further requirements may be established by island decree, but such decree has never been made. An informal practical rule may not substitute for a formally adopted island decree.

Conclusion

This judgment, rendered in 2025 and not officially published, is of great importance for the BES islands. The judgment of the Court of Bonaire brings a significant change for the application and assessment of building permits: only technical requirements explicitly laid down in the BES Building Decree (BES Bouwbesluit) or the building and housing regulations (bouw- en woningverordening) may be used in the assessment of an application. If such provision is absent, the Executive Council may not impose additional or informal technical requirements (such as minimum ceiling height, dimensions, or fire safety requirements), nor can the permit be denied or amended on that basis.

If the Executive Council does wish to apply additional technical requirements, these must first be formally enacted through regulations, not through policy or customary practice.

For contractors, developers, and clients, it is thus advisable to always check which technical requirements are imposed in a building permit, and whether these requirements have a legal basis. If they lack such legal basis, they cannot be enforced through the permit. Naturally, they may still be agreed on contractually between parties.

This makes the permitting process more transparent and predictable for all parties involved in the construction sector on the BES islands.

Do you have questions about your (application of a) building permit? Or are technical requirements being imposed that are practically unfeasible or financially undesirable? Contact our administrative law specialist Paul de Lange
E: lange@vaneps.com
T: +599 701 1030.