Critical building supervision or hasty enforcement?
There are times when the public authority suspects that the quality of a building is not up to scratch. This is not always easy to prove. Especially when it comes to technical regulations, the compliance of which can only be determined through extensive testing. That was the subject of a recent case at the Administrative Law Division of the Council of State. The central issue was the Building Decree.
Buildings Decree standards
According to the Buildings Decree, a building must comply with various standards. Those standards concern, among other things, the architectural quality of the construction, the health of persons and safety. Among the safety standards are, for example, regulations aimed at preventing the risk of fire starting and spreading.
The fire brigade, which oversees safety in buildings on behalf of the public authority, distinguishes various fire compartments in a building. The boundaries of those compartments determine the maximum range within which fire is allowed to spread. To prevent fires from spreading to another compartment, fire barriers must be in place. These must be suitable for preventing the spread or spread of a fire for at least 20 minutes.
The fire resistance of the facilities is assessed according to the methodology described in NEN standard 6068. All calculations of fire spread required for applying for a building permit must be carried out according to this standard.
Uncertainty about fire resistance of floor system
During a fire safety check of a property in Nijverdal, doubts recently arose about a rather old storey floor. The floor in question was a so-called Perfora floor, a lightweight floor system of ceramic hollow brick, which was used until the 1970s. There was no known test data on this relatively dated floor system. It was therefore unknown how long the shape of the floor would be maintained during a fire. Probably the stability of the floor would be weakened, was the assessment of an engineering firm called in. What the further impact would be on the extent of an outbreak of fire was not entirely clear. However, it was expected, the expert said, that the fire resistance would not last 20 minutes.
Procedure up to the highest instance
The municipal council decided to intervene. For it, the risk of fire was too high and the suitability of the fireproofing too unclear. The college omitted further investigation because a test of the fire resistance of the structure was not properly possible. This would in fact require testing a substantial area of the material in question, but this was not available. The college therefore left the uncertainty to the owner.
An order under penalty was therefore imposed on the owner. The owner had to ensure that the floor would meet the requirement of a fire resistance between fire compartments of 20 minutes, according to the standard of NEN 6068. For every week the owner did not comply, it had to pay a sum of twenty-five hundred euros. A hefty financial burden, on top of the costs the owner would already have to incur for investigating, adjusting and possibly replacing the floor.
The owner opposed this in administrative proceedings, which went all the way to the highest court.
The court eventually ruled in favour of the college. According to the court, the college was entitled to rely on the expert report. This would have shown sufficiently that the floor did not meet the applicable standard.
Council of State whistles back
Although the expert had reported on his expectation that the floor construction would last less than 20 minutes, it had not actually been confirmed whether this expectation was correct. An enforcement decision should not be based on an expectation that the construction is inadequate. The fact that conducting further research was very difficult does not constitute a reason to think otherwise, according to the Council of State. That was the college’s problem. The enforcement order went down and the owner was spared a heavy financial noose.
An emotionally rather unsatisfactory decision perhaps, but the formal line taken by the Council of State fits in with the norms in the Building Decree. It does not stipulate that the owner is in breach if he fails to demonstrate that the floor meets the standards of NEN 6068. It is up to the public authority to prove that the floor does not comply. The difficult task for the college in this case, therefore, is to get this old floor system, of which not much material is available, reliably tested for fire resistance one way or the other. So far, then, the owner has the benefit of the doubt. And that saves quite a bit of money.
Administrative enforcement and LVH Lawyers
LVH Advocaten handles many administrative enforcement cases.
