Tolerating a breach means an authority deliberately refrains from acting against an infringement it knows about. It occurs where a business is about to become lawful, where an event falls just outside the rules, or where enforcement would be unreasonably harsh.
Legal basis
Tolerance is nowhere regulated by statute. The starting point is the opposite: settled case law imposes a duty in principle to enforce. Departure is permitted only in special circumstances, two of which recur: legalisation being concretely in prospect, and enforcement that would be disproportionate to the interest protected. The framework for responsible tolerance is set out in policy rather than legislation: only in exceptional cases, limited in scope and in time, explicit and in writing, and after a visible weighing of interests. The Administrative Jurisdiction Division has held that a tolerance decision is in principle not a decision within the meaning of Article 1:3 of the General Administrative Law Act, so objection and appeal are usually not open against it.
How it works in practice
A tolerance decision records which breach is tolerated, for how long and on what conditions. It does not bind the authority indefinitely: a third party can lodge a request for enforcement, and a refusal of that request is a decision that can be challenged. The tolerated situation therefore reaches the administrative court by a detour.
Where it goes wrong
Three points recur. First, oral tolerance, which cannot be demonstrated afterwards. Second, tolerance without an end date, which runs for years and produces real hardship when it is withdrawn. Third, the assumption that tolerance protects against criminal prosecution or against civil claims by neighbours; it does not.
Related terms
Tolerance connects to the request for enforcement, to the principle of legitimate expectations and to the administrative decision.
Operating under a tolerance decision? Our administrative law specialists assess how solid your position really is.
