Onder 6.7. Raad van State 4 april 2018

"82. It (…) remains to be determined whether, having regard to the applicant’s interest in keeping the house, the order to restore the site to its original state is a means proportionate to the aim pursued. 83. (…) (zie hierboven). 84. The Court has, (…), often reiterated that regional planning and environmental conservation policies, where the community’s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (…). 85. The Court observes that the applicant did not build the house himself but purchased it by notarial deed in 1960 (…). Since then he has occupied and maintained the house, and paid the taxes and charges on it. The Court also observes that the house was apparently built over a century ago on public land drained for that purpose without any concession authorising the construction (…). In the Court’s view, the question of whether the house was legally built should not be a matter for consideration in the present case. In any event, the alleged illegality of the building should not be held against the applicant, particularly as it is not disputed that he acquired his "possession" in good faith. His situation is therefore clearly different from that of an individual who has knowingly erected a building without a permit (…). (…). 86. (….). The Court concludes (…) that the applicant had always known that the decisions authorising occupancy were precarious and revocable and considers that the authorities cannot therefore be deemed to have contributed to maintaining uncertainty regarding the legal status of the "possession" (…). Admittedly, the applicant has had peaceful enjoyment of the "possession" for a long time. The Court does not, however, see any negligence on the part of the authorities, but rather tolerance of the ongoing occupancy, (…). It was not until 1986 that the applicant’s situation changed, following the enactment of the Coastal Areas Act (…). In any event, the above-mentioned tolerance could not result in a legalisation ex post facto of the status quo.

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