नेदरल्याण्ड्समा सरकारी दायित्व: क्षतिपूर्ति र क्षतिपूर्ति

A Dutch authority must compensate your loss in two situations: when it acted unlawfully, for example with a decision that was later annulled, and when it acted lawfully but placed a disproportionate burden on you. The first route gives full compensation in principle; the second, nadeelcompensatie under Article 4:126 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb), always leaves part of the loss with you, and neither route works if you let an unlawful decision become final without objecting.

Below we explain both routes, the rules for planning damage under the Environment and Planning Act (Omgevingswet), the deadlines and how to build the evidence.

Which route applies: unlawful act or nadeelcompensatie?

The character of the government act decides the route, not your preference. An unlawful decision or act leads to a damages claim; a lawful decision or lawful work that hits you unusually hard leads to a nadeelcompensatie application to the authority.

How do you claim damages for an unlawful decision?

You first need an annulment, withdrawal or acknowledgement that the decision was unlawful; then you prove causation and the amount of the loss. Unlawfulness and fault are rarely the issue after an annulment.

Is the authority automatically at fault after an annulment?

In principle, yes. In Van Gog/Nederweert the Hoge Raad held that an authority whose decision is annulled for unlawfulness is in principle at fault, and the civil court is bound by that annulment (HR 31 May 1991, ECLI:NL:HR:1991:ZC0261).

The authority cannot escape by pleading good faith. The dispute therefore usually turns on causation and quantum.

Why is causation the decisive issue?

The authority will argue that the loss would have occurred anyway. If the decision was annulled for a procedural defect and the authority could lawfully have reached the same outcome, there is no causal link and no compensation.

If the only lawful outcome was a grant of the permit, the loss caused by the refusal or delay is recoverable. Everything depends on reconstructing the decision that should have been taken.

Should you go to the administrative court or the civil court?

The administrative court can award damages under Article 8:88 Awb for an unlawful decision, an unlawful preparatory act or a failure to decide in time. Under Article 8:89 Awb it is competent up to €25,000 including interest to the date of the request, and exclusively competent where the Centrale Raad van Beroep or the Hoge Raad decides on the underlying decision, as in social security and tax.

Above €25,000 the civil court decides. Before filing with the administrative court you must ask the authority in writing for compensation at least eight weeks in advance (Article 8:90 Awb). Once you have started civil proceedings on the same loss, the administrative court is no longer competent (Article 8:89(3) Awb). For commercial losses the civil court is often the realistic forum.

What happens if you did not object to the decision?

You usually lose the damages claim. A decision that you could have challenged but did not becomes final, and under the doctrine of formal legal force (formele rechtskracht) the civil court must treat it as lawful.

The Hoge Raad accepts exceptions only in special circumstances, for example where the authority itself created a misleading impression about the remedy available (HR 16 May 1986, ECLI:NL:HR:1986:AC9347, Heesch/Van de Akker). Such exceptions rarely succeed. File an objection (bezwaar) within six weeks (Article 6:7 Awb), even if you are negotiating in parallel.

When are you entitled to nadeelcompensatie?

Under Article 4:126(1) Awb an authority that causes damage in the lawful exercise of its public powers must, on request, compensate damage that exceeds the normal social risk and hits you disproportionately compared with others. Title 4.5 Awb replaced a patchwork of separate schemes with one general regime that covers lawful decisions and lawful factual conduct, such as public works.

Which two conditions must you meet?

The loss must go beyond the normal social or business risk (abnormal burden), and it must hit you harder than others in a comparable position (special burden). Where a whole sector or district is affected equally, there is usually no claim.

Article 4:126(2) Awb leaves loss with you in any case where you accepted the risk, could have limited the loss by reasonable measures, the loss is otherwise attributable to you, or compensation is secured elsewhere, for example by insurance. Any advantage you gained from the same event is set off.

How is the normal social risk quantified?

For a fall in property value caused by a development outside your own plot, Article 15.7 Omgevingswet treats four percent of the property’s value as the normal social risk. That four percent is a fixed statutory deduction.

For direct damage and for loss of income or turnover there is no statutory percentage. The authority assesses the facts: whether the development fits the area and existing policy, how normal the interference is and how hard it hits you. Under the old Wet ruimtelijke ordening (Wro) the two-percent deduction was a minimum and the authority first had to assess the normal social risk itself (ABRvS 5 September 2012, ECLI:NL:RVS:2012:BX6492).

When have you accepted the risk?

You accept the risk if you bought or invested at a time when a prudent buyer could have foreseen the development from published policy (active risk acceptance, Article 4:126(2)(a) Awb). The price you paid is then assumed to reflect that risk.

Passive risk acceptance applies if you did not use existing development rights after their removal became foreseeable. Article 15.6 Omgevingswet sets a clear test for changes to the omgevingsplan: the authority announced the change at least one year in advance, and the permitted activity was not carried out in the three years before that announcement or afterwards. Under the old law the Division denied compensation to an owner who had been told in writing years before the new plan that the residential use would go and took no steps (ABRvS 28 September 2016, ECLI:NL:RVS:2016:2582).

How does planning damage work under the Omgevingswet?

Since 1 January 2024 planning damage (planschade) falls under Chapter 15 of the Omgevingswet, which supplements Title 4.5 Awb. The most important change is that indirect damage is assessed when the activity is permitted or started, not when the plan is adopted.

Which decisions can trigger a claim?

Article 15.1 Omgevingswet contains a closed list of instruments, including rules in the omgevingsplan, an environmental permit (omgevingsvergunning) and a project decision (projectbesluit). Loss caused by an instrument outside that list does not fall under this chapter. Non-material damage is excluded (Article 15.2 Omgevingswet).

When is indirect damage assessed?

Where the activity requires a permit, the fall in value is measured by comparing the value immediately before and after the notice of the permit decision (Article 15.3 Omgevingswet). Where no permit is needed, you can apply once the initiator has notified the authority of the activity or has started it (Article 15.4 Omgevingswet).

An omgevingsplan rule that is never used therefore does not cause compensable indirect damage. Under Article 15.5 Omgevingswet, buying a home after the omgevingsplan was adopted or changed does not in itself mean you accepted the risk of a later activity on another plot.

Does the old Wro regime still apply to your property?

It may. Under Article 4.19 of the Invoeringswet Omgevingswet the old Wro rules continue to apply to damage caused before 1 January 2024 by, among other things, a zoning plan (bestemmingsplan), provided the application is filed within five years of that date, so before 1 January 2029.

For a decision applied for or published in draft before 2024 but taking effect later, the five years run from the date it took effect. Check the date of the damage-causing decision first, because the comparison method and deductions differ.

Can you claim for road works and long construction projects?

Yes, through nadeelcompensatie, because the works are lawful. This is the most common business case: a shop, hotel or restaurant whose access is blocked for months by road, tram or sewer works.

The special burden is usually met when the obstruction is concentrated on a few premises. The abnormal burden is the real issue: a business must absorb ordinary interference. Factors that push loss above that line are works lasting much longer than announced, complete loss of access, no alternative route or signage, and timing in the business’s peak season. Most authorities set a turnover-loss threshold in their own nadeelcompensatie policy rules, which the Administrative Jurisdiction Division reviews for proportionality; check the policy rule of the responsible authority first.

What are the procedure, deadlines and costs?

You apply to the authority responsible for the damage; for the physical environment Article 15.8 Omgevingswet identifies which body that is. The application must describe the event and the nature of the loss and, as far as reasonably possible, its amount with a specification (Article 4:127 Awb).

प्राधिकरणले कति समयसम्म निर्णय गर्नुपर्छ?

Eight weeks, or six months if an independent advisory committee is appointed, with one extension of up to eight weeks or six months (Article 4:130 Awb). If the damage was also caused by a decision that can still be appealed, the authority may wait until that decision is final.

The decision on your application is itself appealable: objection within six weeks, then appeal to the district court and higher appeal to the राज्य परिषद्को प्रशासनिक क्षेत्राधिकार विभाग.

कुन समय सीमा लागू हुन्छ?

The authority may reject a nadeelcompensatie application filed more than five years after you became aware of the damage and the responsible authority, and in any case twenty years after the damage was caused (Article 4:131 Awb). For damage caused by an appealable decision, the five years do not start before that decision is final.

For damages after an unlawful decision, the civil limitation period of Article 3:310 BW applies through Article 8:93 Awb, but it does not start before the annulment becomes final or the authority acknowledges the unlawfulness.

Which costs and interest are reimbursed?

If nadeelcompensatie is granted, the authority must also pay reasonable costs of preventing or limiting the loss, reasonable costs of professional legal or expert help in establishing the loss, any application fee and statutory interest from receipt of the application (Article 4:129 Awb). A regulation may allow the authority to charge an application fee of up to €500 (Article 4:128 Awb).

What should you check as a business or property owner?

Most claims are decided by early steps and evidence. Check these points:

• Whether the decision that caused your loss can still be challenged: object within six weeks.
• Whether the act was unlawful (damages route) or lawful (nadeelcompensatie route).
• Your figures for several years before the event, in gross margin rather than turnover.
• Dated photographs, correspondence and the works schedule, kept while the works are ongoing.
• What you did to limit the loss and what it cost.
• The date of the planning decision, to see whether the old Wro or the Omgevingswet applies.

What should you check as a public authority?

Authorities face the same questions from the other side. Check these points:

• Whether the application contains the information required by Article 4:127 Awb.
• Whether the five-year or twenty-year limit of Article 4:131 Awb has passed.
• Whether the damage stays within the normal social risk or your own policy threshold.
• Whether the applicant accepted the risk or failed to limit the loss.
• Whether an independent advisory committee is needed and which decision period then applies.

What can we do for you with a claim against the government?

हाम्रो प्रशासनिक कानून वकिलहरू act for businesses and property owners on both routes. We can:

• Assess whether your loss falls under the damages route or nadeelcompensatie.
• File the objection against the damage-causing decision within the six-week period.
• Draft the written request to the authority and the application under Article 4:127 Awb.
• Instruct a valuer or forensic accountant and build the counterfactual.
• Represent you before the advisory committee, in objection and on appeal.
• Bring a damages claim before the administrative court or the civil court.

सारांश

• Unlawful government acts lead to damages; lawful acts that hit you disproportionately lead to nadeelcompensatie under Article 4:126 Awb.
• Without a timely objection an unlawful decision becomes final and the damages claim usually fails.
• The administrative court decides damages claims up to €25,000 (Article 8:89 Awb); above that, the civil court.
• For a fall in property value caused by development elsewhere, four percent of the value stays with you (Article 15.7 Omgevingswet).
• Nadeelcompensatie must be claimed within five years of knowing the damage and the authority (Article 4:131 Awb).

बारम्बार सोधिने प्रश्नहरू