Great Bay, Ombudsman Gwendolien Mossel recently concluded an investigation regarding an objection filed on behalf of the residents of Cole Bay against the Ministry of Public Housing, Spatial Planning, Environment and Infrastructure (VROMI) issuing a hinderance permit to a garage operating in close proximity of their homes.
The investigation concluded that the ministry failed to execute the following tasks:
- The ministry failed to provide Complainant with a response to her objection;
- Adhere to the procedures stipulated in the Hinderance National Ordinance (‘Hinderverordening’);
- Conduct a fair and transparent investigation;
- Execute enforcement measures.
Besides the publication of the hinderance permit request in the local newspaper, no other procedures required by law for issuing a hinderance permit were followed and no enforcement measures were taken by the ministry, despite the absence of the required permits.
Urgent need to address structural issues
Based on inter-ministerial meetings held with the Ministry of TEATT, Justice and VROMI, it became apparent that there is a need to urgently address several structural issues that may hamper enforcement in the short and long term. The lack of a comprehensive zoning policy coupled with the lack of communication, cooperation and sharing of information between these Ministries and departments, enables businesses to operate without the proper business license, hindrance permit and/or a building permit. During the meetings held it was also observed that the Inspectorates of both ministries are also limited in the extent they can execute enforcement measures.
The Ombudsman also reviewed the procedures applied during an inspection that was carried out by the Ministry of VROMI in August 2022 (approximately 1 year and 7 months later) in reaction to the request for enforcement submitted in January 2021. The review determined that the inspection had been executed in an inept manner. It was revealed that prior to an inspection the ministry would contact alleged offenders and set a specific time and date for inspections to take place, which in turn limits the capacity of the Inspectorate to accurately/effectively assess whether an individual or organization is/was violating the law. The failure to properly document its findings and carry out follow up inspections to support its conclusion in this case were also a matter of concern.
Despite Complainant having filed the objection, there was little to no interaction between Complainant and the Inspectorate. At no point in time was Complainant contacted to provide additional information to substantiate the objection.
As it pertains to the standards of good governance, the Ombudsman concluded that the standards of adequate organization of services, promptness, fair play and cooperation were violated. To date of issuing the final report, no decision has been provided to the objection filed.
Findings and recommendations
Considering the investigation and findings, the Ombudsman made the following recommendations:
- Execute enforcement measures in accordance with the ‘beginselplicht tot handhaving’ (principle obligation to enforce: this compels the ministries to carry out enforcement measures once a violation has been established or detected) and the national ordinance;
- Provide Complainant with a decision to her objection within 1 month of this report;
- Execute joint controls based on complaints received regarding hindrances that negatively affect the general public;
- Ensure cooperation between the Ministries of VROMI and TEATT to ensure that business licenses, building permits and hinderance permits are issued in accordance with the law and existing policies;
- Ensure proper execution of the ‘Hinderverordening’ (e.g. informing those persons, within the legal parameters, by means of a notification at their address of the establishment of a business and its potential activities);
- The current system used to respond to incoming objections, letters, requests and grievance should be thoroughly reviewed to address existing bottlenecks;
- Provide the Ombudsman with an update on the status of the finalization of the fine book;
- Provide the Ombudsman with an update regarding the completion of the zoning policy.
The Ministry of VROMI has been requested to provide a status report on the recommendations by 31 July 2024. The entire report can be found on the Ombudsman’s website: ombudsman.sx.
