My Home is My Castle: Flemish Environmental and Zoning Law Update

A roundup of notable recent environmental and zoning legislative developments in Flanders.

This quarterly update discusses notable recent and pending changes to Flemish environmental and zoning legislation.

Implementation of the single permit

On 23 February 2017, the Flemish region and provinces started granting the so-called single permit (omgevingsvergunning) which replaces and consolidates the building permit (stedenbouwkundige vergunning), the environmental permit (milieuvergunning), and the permit to divide up land (verkavelingsvergunning) into one permit of unlimited duration. Rather than having to apply for multiple permits with various public authorities, businesses can now file a single application for one permit, thereby saving time and money.

Under the new legislation, an application for a single permit, which requires the involvement of an architect, must be filed online with the Environmental Agency (Omgevingsloket). The establishment of an electronic permit application system raised a number of technical difficulties. As not all Flemish municipalities managed to implement the online application system on time, the date of entry into force of the single permit application procedure has been repeatedly postponed. According to the Flemish Environmental Ministry, however, the procedure is expected to be in force in every Flemish municipality on 1 January 2018. 
Existing permits remain valid until their expiry date. Thus, the holders of a valid environmental or building permit need not apply for a single permit.

New restrictions on the possibility to appeal a single permit

Currently, in order to build, demolish, renovate or change the primary use of a property or infrastructure project, a building permit (soon a single permit) is required. The municipality's decision to grant a building permit may be appealed to the provincial council (bestendige deputatie) and subsequently to the Council for Permit Disputes. Any person who suffers a direct or indirect nuisance or disadvantage from the municipality's decision to grant a permit may challenge the decision. An administrative appeal to the provisional council can take up to six months, whilst subsequent proceedings before the Council for Permit Disputes can last up to two years. Builders thus face legal uncertainty for a substantial period of time.

A new provision in the decree of 29 November 2017 obliges opponents of a real estate or infrastructure projects to object to the project during the public inquiry stage of the permit application procedure. If the challenge is not filed within this time period, administrative appeal to the provincial council and subsequent proceedings before the Council for Permit Disputes will not be possible. Only persons who (i) suffer direct or indirect nuisance or disadvantage from the municipality's decision to grant a permit and (ii) file a substantiated complaint during the public inquiry stage of the permit application procedure will be able to challenge the permit. A limited number of exceptions related to force majeure and modification of the permit after the public inquiry stage apply. In principle, the time period to file complaints during the public inquiry stage is 30 days.

The new provision is expected to significantly reduce the number of legal challenges to permits.

Certain environmental associations have stated that they intend to seek to invalidate the Flemish decree, on the ground that it violates the right of access to justice in environmental matters, guaranteed by the Treaty of Aarhus. It remains to be seen whether this major change in urban planning law will be upheld by the Constitutional Court.

New expropriation decree

On 1 January 2018, the new Flemish decree on the expropriation of property will enter into force. 
This decree reforms and modernises the Belgian expropriation legislation of 1835, 1870, 1926 and 1962. The decree aims to speed up the realisation of projects in the public interest, whilst safeguarding individual property rights.

Under the new legislation, Flemish public authorities are obliged to negotiate with property owners, organise a public inquiry, and offer owners the possibility of executing the proposed public interest project themselves. The public authority may also be obliged to purchase any portion of the property that is not expropriated.

The decree applies when a Flemish public authority dispossesses a private owner of its property for public purposes. When a federal public authority expropriates property, the federal expropriation laws will apply.

An expropriation authorisation granted by a higher to a lower Flemish public authority may be challenged before the Council for Permit Disputes (Raad voor Vergunningsbetwistingen), whilst local justices of the peace (vrederechters) have jurisdiction to hear disputes regarding the expropriation procedure itself.

Update on Flemish soil law

On 29 November 2017, the Flemish Parliament adopted a new decree modifying the Flemish Soil Decree. The changes will enter into force in the spring of 2018.

The main modifications relate to (i) an obligation to survey plots of land which have not been previously surveyed and which could contain historical soil pollution; (ii) optimisation of the instruments available to the sector funds for soil remediation; (iii) clarification of the scope of the waste legislation, in particular with regard to soil-related materials; and (iv) requirements for the use of excavated soil.

Another new feature is the abolition of OVAM's obligation to confirm that a soil survey conforms to the Flemish Soil Decree. Whilst soil experts must still submit exploratory and descriptive soil surveys to OVAM, OVAM is no longer obliged to verify the conformity of each and every survey, although it can decide to do so on a case-by-case basis.