You have heard about it, read about it or you have seen it yourself. On the edge of the Bottelier district, preparations have been underway since last year 2021 for the construction of an eco-agro-resort. The intention is that the eco-agro-resort will consist of 8 to 16 bungalows with horse stables and the cultivation of vegetables. To build a project like this, the developer of the land must at least be in possession of a building permit and a nuisance permit.
Bottelier's neighbours were convinced that the developer of the land did not have the necessary permits, even though he claimed that he did. In the meantime, the work for the development of the project was in full swing. Bottelier's neighbours, our clients, therefore went to court for a construction stop because of the nuisance and inconvenience they experienced due to the construction activities, but also because of the fear of nuisance and inconvenience in the future.
Recently, the interim relief judge (a judge in summary proceedings) ruled in favor of Bottelier's neighbors in an early ruling. It has been established that no building permit and/or a nuisance permit had been issued for the eco-agro-resort project. Without a building permit and a nuisance permit, the unlawfulness, i.e. the nuisance and inconvenience of the neighbors, is established. In this case, the neighbors submitted photos, video images and sound fragments of the work. The work even continued late in the evening. The interim relief judge could therefore only conclude that the interests of the neighbors outweigh those of the developer (realizing the project). In addition, the developer himself stated that no construction work was taking place (which of course was clearly the case given the evidence provided by the neighbors). A construction stop would therefore not change the situation - according to the developer himself -. The developer shot himself in the foot with this defense!
The absence of a building permit and a nuisance permit mean that the developer cannot and may not do anything because of this ruling. If the developer does do it anyway, a penalty will apply for every day that work is carried out. The construction stop imposed by the interim relief judge in this case is legally valid until the developer has a building permit. The question that then arises is whether the building permit will be issued at all. If this is the case, then the fear of nuisance from stench and vermin from the horse stables remains. Should the neighbours just have to live with that? The answer to that question is negative.
In this case too, Bottelier's neighbours (and others in a similar situation) can turn to a judge. The presence of a building permit and a nuisance permit does not mean that the developer or builder of a project may cause nuisance and thus affect the living pleasure of the neighbours without hindrance.
Our Civil Code stipulates that the owner of a property may not unlawfully cause nuisance to the owner of another property. A permit holder may assume that the permit has been granted in accordance with the law and that the interests of third parties are involved, which means that he may use the permit.2 But that does not mean that the permit is an excuse for the nuisance in the form of noise or stench. A judge will assess the duration, nature, seriousness of the nuisance and the damage caused by it in connection with the other circumstances of the specific case. The judge therefore weighs up the interests and then considers whether compensation or the demolition of the building is justified.
In the well-known statement of the chicken farm in Curacao (ECLI:NL:OGEAC:2021:143) a similar case occurred in which the degree of nuisance caused by the manure, stench and vermin was considered an unlawful act against the neighbours. On 28 June the judgment was confirmed by the Court.3 Considering the horse stables that will be placed at the eco-agro-resort, it is likely that this will also be the case for the situation in Bottelier. After all, horses will cause much more manure, stench and vermin than chickens. Who knows, there may be a sequel in this matter.
If you are planning to carry out a construction project, seek advice in advance about the risks so that construction is not unnecessarily delayed. A legal discussion can also be illuminating in the situation where you are confronted with construction work in the neighbourhood that you suspect is taking place illegally. Want to know more? Contact contact for a no-obligation consultation.
1. Ecoresort in the making at Bottelier, Antilliaans Dagblad, August 21, 2021.
2. cf. HR 28 February 1975, nos. 10810 and 10811, NJ 1975, 423, and HR 17 January 1997, no. 16124, NJ 1998, 656.
3. Chicken Farm Loss Also on Appeal, Antilliaans Dagblad, June 28, 2022.
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