Procedural attitude of Water Board provokes annoyance from judge

“This is not how government should treat citizens”, concluded the interim relief judge of the District Court of East Brabant in a ruling last week (ECLI:NL:RBOBR:2026:1572). At issue was a dispute over a strip of land. Waterboard De Dommel claimed to be its owner, but the neighbor (a private person) claimed to have become its owner by prescription. This led to a summary proceedings. That summary judgment prohibited the Water Board from making any further attempts to clear the strip of land.

Judge: ‘let this verdict be a wake-up call!’

In the ruling, the judge denounced the “intimidating manner” upon which they “putting the knife to a citizen's throat in a private law matter.” Given that attitude, there existed before the court “every reason to attach a penalty payment to this prohibition.” Not only that, the judge hopes the verdict will “for the Water Board to act as a wake-up-call and to recognize that the Water Board's basic attitude toward its citizens needs a major adjustment.”

It is not often that a judge chooses such fierce language in a verdict. What was going on here?

Dispute between citizen and Water Board over a strip of land

The dispute involves a basically relatively straightforward issue. The Water Board owns a strip of land. A citizen says owner by prescription have become. Normally, parties then take their dispute to court. The judge then examines the matter closely and decides who is right. Waterschap De Dommel had come up with a different strategy. In fact, the Water Board's lawyer informed the citizen that the Water Board itself would proceed with eviction:

“Therefore, as announced, the Water Board will, in the foreseeable future, vacate its parcel of land [cadastral designation] (ged) at [plaintiff's] expense.”

and several weeks later:

“With reference to the letter dated December 5 last, I reiterate that the Water Board will (have) the land strip cleared in the near future at [plaintiff's] expense, in the sense that the paving present on the plot [cadastral designation] (ged) will be removed.”

So the Water Board is announcing it is going to play own judge. This is called ‘self-activity’ and is not allowed. Such actions can be unlawful and even punishable. This is what the citizen's lawyer told the Water Board. The latter, however, would not budge:

“In short: It is up to your client(s) whether they wish to incur costs and pursue this matter. Should she(they) indeed decide to file summary proceedings, I would like to hear about it within 48 hours at the latest. The Water Board will proceed to the removal of the pavement on its own plot if no summary proceedings are filed within 8 days from today.”

Judge is ‘not amused’ by Water Board's attitude

The judge is not at all pleased with this attitude of the Water Board. Indeed, the basic principle in cases such as this, is that it is up to the Water Board to seek judicial review and demand eviction. That self-incrimination is being announced instead causes the court ‘great concern.

The preliminary injunction judge therefore considered:

“4.5 The interim relief judge has noted with great concern the conduct of the Water Board. It is not appropriate for a regional public body to announce, without any legal basis, that it is committing acts of self-interest and then to oblige [plaintiff], as a citizen, to commence legal proceedings within a period of time determined by the Water Board in order to prevent the Water Board from doing so. It is incomprehensible that a lawyer employed by the Water Board should put the knife to the throat of a citizen in a private law matter in such an intimidating manner. It is also puzzling that the executive board of the Water Board, in giving the power of attorney to their attorneys, saw no reason to investigate further and then intervene. (...)”

Not only does that course of action run counter to the basic rules in a democratic rule of law, but it also violates the Water Board's own established land policy. Indeed, the Water Board even seems to recognize that its case in the statute of limitations issue itself, is not necessarily very strong:

(...) Precisely the executive board had to be familiar with the fact that the actions of the Waterboard against which [plaintiff] is contesting in summary proceedings are inconsistent with the content of the land policy that the executive board had recently adopted. This policy also shows that the Water Board was familiar with the fact that in the past the Water Board had regularly failed to record use of land by third parties, improper use had received little attention and, as a result, the Water Board ran the risk of losing property through prescription. With that knowledge, the Water Board should have exercised extra care in private law disputes with citizens over alleged unauthorized land use.” 

In other words, the Water Board was not at all allowed to use self-interest and act in an intimidating manner, but even less so since it knew very well that it could be wrong about the ownership of the land.

Ban on acting Water Board under penalty of fines

The court therefore prohibits the Water Board's proposed actions and binds periodic penalty payments to that prohibition. This is understandable given the Water Board's litigation posture, but in my opinion it is a worrisome development that this is necessary. For many years it has been commonplace for the courts not to award injunctive relief in proceedings against the government. Indeed, the government accepted a court decision as a matter of course. Exactly as it should be in a democratic society based on the Trias Politica. Unfortunately, ignoring a court order by a government agency is really no longer something that happens only in the America of Trump takes place. This is also happening more and more often in the Netherlands. In January of this year, for example, the municipality of Vlaardingen was imposed penalty payments for the ignoring a previous court ruling. Also, the Municipality of Hollands Kroon ignored a court ruling in late 2025. The way the Water Board acted in this matter is in line with these developments. I therefore concur with the hope expressed by the court that this ruling is a wake-up call. Not only for De Dommel Water Board, but for governments in general.