On 1 July 2017 new building rules took effect on Bonaire. These rules consist of two parts: (1) the rules of the building permit obligation, the requirements imposed on buildings and the building permit procedure (in the new chapter 2 of the Housing, Spatial Planning and Environmental Management BES, VROM BES Act) and (2) the (general) elaboration of the technical and usage requirements (in the new Buildings BES Decree). On the face of it there are more changes than one would assume.
What is a building permit needed for?
The Housing, Spatial Planning and Environmental Management BES Act (VROM BES Act) introduces the term ‘building’ for which a building permit is required. This term has a broader scope than the term ‘edifice or ‘residence’ in the old Building and Housing Bonaire Decree. In the case law of the European Netherlands detailed substance has meanwhile already been given to the term building on the basis of a general definition that is used as a guideline: “every construction of some scope of wood, stone, metal or another material that on the place of destination is either directly or indirectly connected to the land, is either directly or indirectly supported in or on the land, with the intention of locally being operational.” It follows from several rulings that the following constructions are qualified as a building: a sea container that had been on location for more than three months (!), wooden duckboards of six square meters and a horseback riding box. It seems that a building permit is required for much more buildings than used to be the case. However, the Housing, Spatial Planning and Environmental Management BES Act includes that the executive council has the possibility of defining so-called buildings of limited meaning. This implies that certain buildings, e.g. the aforementioned sea container, can be qualified as not requiring a building permit. The executive council did not elaborate this possibility yet.
What requirements are applicable to buildings?
The technical requirements that buildings must comply with are included in the Buildings BES Decree. However, this Decree only provides very general standards for structural safety, safe use, fire safety and accessibility. The legislator did this intentionally so that the BES islands have the possibility of establishing detailed technical rules that focus on the local situation. The executive council can use the BES Code for this and/or the Decree of the Governor of Curaçao of 18 September 1935. The BES Code was, however, not written specifically for Bonaire and the Decree from 1935 has been around for many years and does, perhaps, no longer represent the latest technical insights.
In terms of fire safety, rules are apparently used that were established by the fire department. We were unsuccessful in retrieving the content thereof. Hopefully the executive council will shortly provide more clarity about the content of the applied standards.
When it comes to safe use the Buildings BES Decree states that a notification of occupancy must be made when a building is put into use if more than fifty people will be present simultaneously (e.g. in case of large stores) and if a residence is used for letting rooms to more than four people. An occupancy permit is even required if lodging for the night is provided to more than ten people or lodging for the day to more than ten people under the age of twelve (e.g. in case of child daycare centers) or disabled people.
In addition, the Island Council can impose additional rules in a building code and in the area of building esthetics.
Procedure and publication
The Buildings BES Decree prescribes what documents need to be submitted with the application for a building permit and what charges are payable for the handing of the building permit. The Housing, Spatial Planning and Environmental Management BES Act also includes the obligation that the executive council publicly announces applications for building permits in one or more local newspapers. This way it is announced who applied for a building permit for what and when. This avoids your neighbor from building without you having had the opportunity of taking note of the building permit application. However, the executive council did, to the extent that we were able to verify, not elaborate this statutory obligation yet.
The executive council will decide within a period of sixteen weeks after receipt of the application for a building permit. This period can be extended once by a period of at most eight weeks.
Although the building permit must be granted, unless there is question of a ground for refusal (non-compliance with technical rules, violation of the Spatial Development Plan Bonaire, no listed building consent, violation of reasonable requirements of building esthetics or non-compliance with the Buildings Decree), overstepping of the decision period does not automatically imply a building permit was obtained. In case of an overstepping of the decision period the court will need to be asked to order the executive council to yet reach a decision, if necessary subject to a judicially imposed penalty.
A granted building permit can be revoked if it was granted on the basis of incorrect data, if the building activities did not start within a year, if the building activities have been discontinued for more than six months or if the building has not been completed within three years. Hence, it is important not to lose the building momentum.
Conclusion
The Housing, Spatial Planning and Environmental Management BES Act gradually offers an integrated framework for the regulation of spatial issues and the environment. With the elaboration of the building chapter another step was taken and through the prescribed publication of building permit applications it is easier to follow developments on Bonaire and to, if so required, take a standpoint on the same.
The elaboration and publication of the technical standards, esthetic requirements and the building code will probably still take some time, however after that it will be transparent what spatial developments can be permitted on Bonaire under what conditions.
Tom Peeters is an experienced and specialized real estate lawyer and head of our Bonaire office. He regularly publishes about project development, sustainable energy projects, cooperative structures and (public) procurement. Via this blog he shares his knowledge about these and other legal topics that concern entrepreneurs in Bonaire.
