New decree on immovable heritage sites

The Flemish Government introduced the new decree on immovable heritage sites (1) to address this subject’s scattered legal landscape. Going forward, the different types of such sites are treated equally, taking into account the main immovable heritage diversity in Flanders.

This newsflash outlines 4 highlights in the new decree, which will probably enter into force in the beginning of 2015.

1. Protection of immovable heritage sites

By receiving one of 4 different protection statuses (protected monument; protected cultural historical landscape; protected urban landscape; or protected archaeological site), a valuable immovable heritage site can be conserved for future generations. The protection procedure often starts by a registration in immovable heritage inventories (see below), after which a documented protection request is filed.

Thereafter, a two stage procedure is provided with a provisional and a definitive protection status. The decision of protection is modernised and there is an increase in required incorporated data, so that relevant information is immediately available for both owners of rights in rem and governmental bodies.

After a provisional protection status, a public inquiry is organised so that the definite protection status can be granted within a maximum period of 12 months.

Both protection statuses have concrete legal effects:

  • an active duty of preservation for right in rem owners and users;
  •  a public passive preservation duty: it is prohibited to disfigure protected goods, to damage, to destroy or perform deeds which can impair the value of the heritage site;
  • certain activities on or in protected goods require permission from the immovable heritage authority (agentschap Onroerend Ergoed or erkende onroerenderfgoedgemeente).

Considering the specificity of archaeological heritage, the decree adds to the already existing immovable heritage management and maintenance instruments by introducing additional measures with special regard to the search for archaeological heritage as well as to archaeological heritage itself.

The holders of rights in rem and users of archaeological artefacts and sites have the obligation to conserve these as a whole, to maintain them well and to keep them available for scientific research. In certain situations, the permit applicant adds a ratified archaeological memorandum (bekrachtigde archeologienota) to his permit request. Furthermore, an archaeological preliminary research needs to be conducted before the application of town planning and land fragmentation permits. An archaeological report may need to be compiled to define executed work and results, the future approach as well as a justified proposal concerning the preservation and deposition of the archaeological site.

2. Access to information concerning protected goods

Governmental bodies and stakeholders highly value readily accessible and correct information on valuable immovable heritage sites and protected goods. This is made possible by inventories, a publicly available digital database and unique identification marks.

Inventories deliver a factual overview of immovable heritage sites’ value in Flanders and are a first indication towards potential future protection decisions. The new decree grants legal basis and legal effect to each of the 5 inventories (inventory of known archaeological zones; architectural heritage; historical gardens and parks; woodlands and the landscape atlas). The inventories are digitally and publicly2 accessible.

The decree stresses that registration in an inventory does not create any legal disadvantage for individuals. In other words, registration cannot justify the refusal of a permit request. However, permission for activities, processes and operations conducted by governmental bodies could be denied on the basis of such registration.

The protected immovable goods are publicly accessible through a digital database in which every provisional and definitive decision of protection is recorded3.

Visually, an immovable heritage site can be recognised through identification marks which can be applied to protected objects or areas.

3. Disclosure requirements when transferring immovable goods

It is evident that the registration in an inventory or the protection of immovable heritage sites is important for everyone involved and even more so for potential buyers. In this respect, the decree introduces uniform disclosure requirements for transferors towards potential buyers or tenant, upon the transfer’s publication or the immovable goods’ availability and when drafting the private and authentic deeds4. Furthermore, the decree establishes a notary obligation to disclose the remedial measures in case the decree is violated or whenever administrative measures are being taken (see below).

4. Means of enforcement

Violations of this decree are regarded as infringements and are sanctioned by administrative fines. All other violations are considered criminal offences. The decree introduces more efficient and effective mechanisms to uphold the decree’s provisions and penalise violations.

A subpoena to appear in court for criminal offences, such as demolishing a registered immovable good without a permit, is registered in the registrar of mortgages for the protection of potential buyers. An administrative fine can otherwise be imposed by the inspector of Immovable Goods (Inspecteur Onroerend Erfgoed) for non-compliance with the disclosure requirements.

Furthermore, restoration measures can be imposed by the criminal or civil court, such as the repair of inflicted damages or the partial or complete reconstruction of the destroyed good. Until the execution confirmation for these restoration measures is incorporated in the document instituting the procedure, the new owner needs to engage in executing the imposed measures.

The decree also introduces the possibility for governing bodies to claim, in urgent cases, the power to execute or delegate the restoration measures’ execution under a posteriori judicial control. Such measures can take the form of an injunction or a periodic penalty payment.

Contrary to the previous regulations, the new decree provides the possibility for a extrajudicial settlement of the violation’s civil consequences. The extrajudicial settlement is recorded in a document which is transcribed in the mortgage office. Until the extrajudicial settlement execution is transcribed, the notary needs to comply with his disclosure obligations. The new right in rem holder needs to act in accordance with the extrajudicial settlement.