The five most expensive mistakes in Dutch construction law are all consequences of the same two reforms. Since 1 January 2024 the Omgevingswet (Environment and Planning Act) has replaced the permit system that most guidance still describes, and the Wet kwaliteitsborging voor het bouwen (Building Quality Assurance Act) has reversed the contractor’s liability for defects that were not discovered at delivery. Working from pre-2024 assumptions about permits, liability, warnings, insurance and dispute resolution is how projects run into trouble.
The mistakes in Dutch construction law described below all follow from that. This article sets out where the law now stands and what to do differently. It is written for developers, contractors, principals and international parties building in the Netherlands, and it assumes no familiarity with the Dutch system.
What changed on 1 January 2024, and why it matters
Two reforms took effect on the same day. The Omgevingswet consolidated some twenty-six earlier statutes, among them the Wet algemene bepalingen omgevingsrecht, the Wet ruimtelijke ordening, the Waterwet and the Wet natuurbescherming, into a single system for the physical environment. On the same date the Bouwbesluit 2012 was replaced by the Besluit bouwwerken leefomgeving, which now contains the technical building requirements. Any source that tells you to apply the Wabo, the Bouwbesluit 2012 or the Wet natuurbescherming is describing law that no longer applies.
Alongside it, the Wet kwaliteitsborging voor het bouwen amended the rules on contracting for work in Book 7 of the Burgerlijk Wetboek (Civil Code) and introduced private quality assurance for the lightest consequence class of building work, starting with new build and with renovation phased in separately. Under that system, the municipal technical assessment is replaced by a notification and by supervision from an independent kwaliteitsborger, who has to declare at completion that the works comply with the technical rules.
The two reforms interact. The permit route determines what you may build; the private-law changes determine who pays when it turns out to be defective. Contracts drafted on the older model are still in circulation, and standard conditions had to be brought into line, as the publication of an amended version of the UAV 2012 in February 2025 shows. Checking which version of which set of conditions applies to your contract is now a first-order question rather than a formality.
Mistake one: treating the environmental permit as a single approval
Under the Omgevingswet the old integrated building permit has been split. A building project can require a technical building activity permit, an omgevingsplan activity permit for the use of the location, or both, and the two are assessed against different criteria by, potentially, different authorities. It is entirely possible to hold one and lack the other, and to discover the gap only when enforcement arrives.
Beyond those, a project may need consent for a water-related activity, for an activity affecting a protected natural site or protected species, for work on a listed monument, or for an operating licence from the municipality. Each has its own procedure and its own lead time, and the standard preparation procedure applies to the more complex applications with a substantially longer statutory decision period than the regular route. Building the permit strategy into the programme, rather than treating it as an administrative step before the start on site, is what keeps the timetable realistic. Our article on the environmental permit under the Environment and Planning Act sets out the routes and the decision periods.
The consequences of building without the right consent are administrative rather than criminal in most cases, and that is precisely why they are underestimated. The competent authority can order the work to stop, impose an order subject to a penalty payment for each day or each breach, impose an administrative fine, and require the unlawful work to be undone. Fine levels and penalty payments are set case by case by the enforcing authority within statutory maxima, so any published range is unreliable; what is predictable is that the cost of demolition and delay exceeds the cost of the permit by an order of magnitude.
Legalisation after the fact is sometimes possible, and an authority is generally obliged to consider it before enforcing, but it is not a right. If the activity does not fit the omgevingsplan, the answer will usually be no.
Mistake two: signing standard conditions without reading what they do
Dutch construction runs on standard sets of conditions rather than on bespoke drafting, and the choice between them allocates the risk before a single clause is negotiated. The UAV, the uniform administrative conditions for the execution of works, fit the traditional model in which the principal supplies the design and the contractor executes it. The UAV-GC, the conditions for integrated contracts, fit design and build, where the contractor takes responsibility for the design as well and is measured against performance requirements rather than against drawings.
Three consequences follow from that choice. Under the traditional model the principal carries the risk of errors and omissions in the design it supplied, and the contractor’s warning duty is the principal’s main protection. Under the integrated model the contractor carries the design risk, which is reflected in the price and in the level of professional indemnity cover it must hold. And the mechanism for variations differs: in the traditional model a variation is a formal instruction, in the integrated model it is assessed against the performance specification, which is where disputes about whether something was a variation at all tend to arise.
Neither set applies of its own accord. They have to be declared applicable and handed over, and where they are used as general terms and conditions the ordinary Dutch rules on unreasonably onerous clauses apply to the counterparty that is entitled to invoke them. Our note on general terms and conditions explains when a set can be set aside, and our guide to the construction contract covers the basic structure.
The most common practical error is inconsistency. A contract that declares the UAV applicable, then adds a schedule of amendments drafted for a different regime, and finally attaches a specification containing its own priority clause, produces three answers to the same question. Fix the order of precedence in the contract itself, in one place, and make sure the deadlines for notices, variations and claims in the amended conditions are the ones your project team is actually working to.
Mistake three: assuming delivery ends the contractor’s liability
This is the change that catches most people. The old default was that the contractor was discharged, on delivery, from liability for defects that the principal should reasonably have discovered at that moment. Since 1 January 2024 the position under article 7:758 paragraph 4 of the Civil Code is the opposite: the contractor remains liable for defects that were not discovered at delivery, unless those defects cannot be attributed to it. The burden has moved.
Parties can depart from that rule, but not casually. The departure must be agreed expressly in the contract, and where the principal is not acting in the course of a profession or business the rule cannot be excluded at all. In a business-to-business contract, burying the exclusion in general conditions is not enough; it has to be a term the parties actually addressed. It was precisely this that made the older wording of the standard conditions unusable, and that prompted the amended version published in February 2025.
Three further private-law changes came in with the same act. The contractor’s duty to warn about defects in the design, the materials or the instructions supplied by the principal must now be given in writing and unambiguously, with an explanation of the consequences, and that duty applies to existing contracts as well as new ones. For work carried out for a consumer, the contractor must inform the client in writing about the insurance or guarantee cover in place. And the consumer’s right to withhold the final five per cent of the price has been tightened, so that the contractor must actively put the client in a position to exercise it and any substitute security must be equivalent.
What this means in practice is that both sides need better records. A contractor that warned orally in a site meeting has, since 2024, not warned at all. A principal that accepts delivery without a documented inspection is in a stronger position than before, but still has to complain in time once a defect appears. Our articles on construction defects and liability and on the hidden defects time limit set out how the periods run, and our guide on what to do when a contractor delivers poor work covers the practical steps.
Mistake four: leaving insurance and security to the end
Insurance in Dutch construction is arranged around the works rather than around the parties, and the gaps appear at the seams. Construction all risks cover protects the works, the materials and the temporary facilities against physical damage during the build, and is usually taken out by the principal or by the main contractor on behalf of all parties involved. It does not cover defective work as such: it covers damage, and the cost of putting right the defect that caused it is typically excluded.
That gap is closed by professional indemnity cover for designers and for design-and-build contractors, and by general liability cover for damage to third parties and their property. Where the contractor carries design responsibility under an integrated contract, professional indemnity cover at a level matched to the project is not optional, and the contract should specify the sum insured, the period for which cover must be maintained after completion, and the obligation to produce evidence of it.
Latent defects cover and delay in start-up cover exist and are worth considering on larger projects, but they are underwritten against the contract, so the insurer will want to see the liability regime you actually agreed. This is one more reason not to leave the departure from the statutory liability rule to a late-stage negotiation: it changes the risk the insurer is being asked to take.
Security is the other half of the picture. A bank guarantee, a parent company guarantee or a retention arrangement is what makes a liability regime worth anything if the counterparty becomes insolvent, and insolvency in construction is not rare. Agree the instrument, its wording and its expiry date at the same time as the liability clause, not afterwards.
Mistake five: choosing the wrong forum, or none at all
Construction disputes in the Netherlands are not, by default, matters for the ordinary courts. The standard sets of conditions refer disputes to arbitration before the Raad van Arbitrage in bouwgeschillen, the specialist construction arbitration institute, whose arbitrators are lawyers and technical experts. That is usually an advantage: the tribunal understands the subject matter and can appoint its own expert. It is also a commitment, because an arbitration clause excludes the ordinary court and an award can be set aside only on narrow grounds.
The practical mistakes are of two kinds. The first is agreeing an arbitration clause without knowing it, because it sits in standard conditions that were declared applicable in a purchase order. The second is agreeing conflicting clauses in a chain of contracts, so that the main contract goes to arbitration and the subcontracts go to court, which makes it impossible to join the parties in one procedure and produces the risk of inconsistent findings on the same technical question. Align the dispute resolution clauses down the chain, or accept that you will litigate the same defect twice.
Whichever forum applies, the fastest instrument is often the interim measure. A short procedure before the arbitrator or the court in preliminary relief proceedings can secure payment, lift a suspension of the works or compel access to the site within weeks, and it frequently settles the underlying dispute. Expert determination and mediation have their place, especially where the parties have to continue working together, but they need a clause that says what happens if they fail.
A word on the standard notice periods. Both sets of conditions and the Civil Code work with periods for protesting about defects and for bringing claims, and they are short. A defect that is discovered and then discussed informally for six months is a defect that may no longer be actionable. Put the complaint in writing on the day you discover it, and reserve your rights explicitly; that alone preserves more claims than any other single step.
Environmental and ground conditions: the risk that is rarely allocated properly
Since the Omgevingswet came into force, the rules on soil, water, noise, emissions and protected nature are largely found in that act and in the decrees under it, principally the Besluit activiteiten leefomgeving and the Besluit kwaliteit leefomgeving, together with the municipal omgevingsplan. The Wet milieubeheer still exists but has a narrower scope than it had. The practical point for a project is that the applicable rules for a specific site now depend heavily on the local omgevingsplan, which varies from municipality to municipality and is still being developed in many of them during the transitional period.
Contaminated soil, unexploded ordnance, archaeological finds and protected species are the classic causes of delay, and the contract rarely says clearly who bears them. Under the traditional conditions, ground conditions that differ from what the contractor could reasonably have expected generally entitle it to additional payment and time; under integrated contracts, the allocation depends on the risk schedule the parties agreed, and an incomplete schedule defaults to a dispute. A site investigation before contract is cheaper than the argument afterwards, and its results should be an annex to the contract with an express statement of who bears what it did and did not reveal.
Nitrogen deposition remains the constraint that stops projects outright rather than delaying them. Where a project may affect a protected Natura 2000 site, an assessment is required and consent can be refused. This is an area in which the case law has moved repeatedly, so an assessment prepared for an earlier project is not a reliable guide to a current one. Take specialist ecological and legal advice at the feasibility stage, not after the design is fixed.
Where the works affect neighbouring properties, the general law of tort and the specific rules on nuisance and on subsidence apply in addition to the permit. A permit is not a licence to cause damage: it authorises the activity in public law and leaves the private-law liability towards neighbours entirely intact. Our article on foundation damage deals with the most expensive version of that problem.
Who answers for what in the chain
A principal contracts with a main contractor, the main contractor with subcontractors, and the design sits with an architect or an engineering firm that may be engaged by either. When something fails, each of those relationships is governed by its own contract, and there is no general rule that liability travels down the chain automatically.
The principal’s claim normally lies against its own contracting party, which means the main contractor answers for the performance of subcontractors it engaged. The main contractor then has to pass the claim on under the subcontract, and that only works if the subcontract mirrors the main contract in scope, in notice periods and in limitation of liability. A back-to-back gap, in which the main contractor owes more than it can recover, is one of the most expensive drafting failures in construction, and it is invisible until a claim arrives.
Designers are usually engaged on their own professional conditions, which typically cap liability by reference to the fee and shorten the period for claims. Whether that cap is enforceable against a principal that suffered a far larger loss depends on the circumstances, and a serious failure can defeat a limitation clause. Where the same defect involves both design and execution, expect an argument about apportionment, and expect it to be resolved by expert evidence rather than by the contract text. Our article on defects in newly built homes shows how those arguments run in practice, and buyers of new-build property should also read our guide on apartment rights and the owners’ association, which is where liability for a shared building actually sits.
What to do before you sign
Four checks account for most of the avoidable risk. Establish which consents the project needs under the Omgevingswet and who applies for each, and put the decision periods in the programme. Establish which set of standard conditions applies, in which version, and read the amendments schedule against it for internal contradictions. Establish what the contract says about liability for defects not discovered at delivery, and whether any departure from the statutory rule has been agreed expressly and is enforceable. And establish that the dispute resolution clauses in the main contract and in the subcontracts point to the same forum.
Then set up the project so the paperwork exists when it is needed: written warnings, written variation instructions, written complaints, a delivery record and a completion file. Dutch construction disputes are decided on documents, and the party with the better record usually wins the point regardless of who was right on site.
How Law and More can help
Law and More advises principals, developers, contractors and subcontractors on Dutch construction law, and on avoiding the mistakes in Dutch construction law set out above. We review and draft construction contracts and the amendments to the standard conditions, advise on the permit route under the Environment and Planning Act, deal with liability and defect claims after delivery, and act in arbitration before the specialist construction tribunal and in preliminary relief proceedings. We work in English and several other languages for international parties building in the Netherlands. Our practical guidance for the sector is collected in our article on Dutch construction law for builders and contractors and in our Dutch real estate law guides. Please contact Law & More to discuss your project.
