Has land over which you hold rights been designated as a water-sensitive open space area (WORG), even though you are not the owner? Until recently, only the owner was entitled to compensation, and even that compensation was reduced. As from 20 August 2026, the Collective Decree on Environment will correct this situation. Those who were previously excluded from compensation will have two years to submit a claim.
What is a water-sensitive open space area?
Since 2017, the Flemish Government has been able to designate land as a water-sensitive open space area, commonly referred to by the Dutch acronym WORG. These are areas that are important for water storage or flood management and which, as a result, largely remain undeveloped.
In return, Article 5.6.8 of the Flemish Code for Spatial Planning (VCRO) provides for compensation for the owners concerned, calculated in accordance with the same rules as ordinary planning compensation.
The issue: who exactly qualifies as an “owner”?
In practice, not everyone was eligible for this compensation. Article 5.6.8 VCRO defined the person entitled to compensation as the person who, at the time of designation, held ownership or bare ownership of the relevant plot.
By contrast, the Instrument Decree of 26 May 2023 applies a broader definition to comparable compensation schemes. This definition also includes holders of a right of superficies or a ground lease as beneficiaries.
This distinction had practical consequences. Under the ordinary planning compensation regime, the owner and the holder of a right of superficies share the compensation according to their respective interests. For a WORG designation, however, the full compensation was paid to the owner alone, while being reduced by the portion attributable to the right of superficies. The holder of the right of superficies or ground lease therefore received no compensation directly.
The solution
The Collective Decree on Environment replaces Article 5.6.8, § 6 VCRO with a straightforward reference to the planning compensation rules set out in Articles 2.6.1 and 2.6.2 VCRO. As a result, the same rules determining who is entitled to ordinary planning compensation will now also apply to WORG compensation, including the broader category of beneficiaries introduced by the Instrument Decree.
A transitional arrangement for past situations
Persons who qualified as beneficiaries under the Instrument Decree but were not entitled to compensation under the previous, more restrictive wording of Article 5.6.8 VCRO will still be able to submit a claim.
The Decree provides for the following transitional arrangement:
- Claims may be submitted within two years from 20 August 2026, regardless of when the land was originally designated as a WORG;
- This period may be extended under the same conditions as those applying to ordinary planning compensation;
- This specifically concerns holders of rights of superficies, ground leases and other rights in rem who have so far received no compensation, or only benefited indirectly through the owner.
What does this mean for you?
Do you hold a right of superficies, a ground lease or another right in rem over land that was designated as a water-sensitive open space area, and have you never received compensation in this respect? If so, it may be worth reviewing your position. The two-year period for submitting a claim starts on 20 August 2026, including for land that was designated as a WORG several years ago.
Authors:
- Matias Osorio Olivera, Counsel at Andersen in Belgium
- Yves Sacreas, Senior Counsel at Andersen in Belgium
