Watch out for those yellow posters because, before you know it, it's too late!


Watch out for those yellow posters because, before you know it, it's too late!

Sarah Jacobs

You will probably already have heard about it on the news. The 2017 Codex train has set a very controversial amending act in motion related to the right to appeal against permit decisions. Those who do not launch an objection during the public inquiry - announced via the yellow posters - lose the right to an administrative appeal. This new regulation applies to a request for a single permit for both urban planning aspects (the former urban planning permit), for the exploitation of a classified facility or activity (the former environmental permit) and also the allocation of land (the former allotment permit).

Amendment to the Flemish Single Permit Decree

On 1 January 2018 the Flemish Single Permit was enforced in all Flemish cities and districts. This single permit unites and replaces the urban planning permit, environmental permit and allotment permit. The procedural regulations related to the single permit are included in the Decree of 25 April 2014 concerning the Single Permit, also known as the Single Permit Decree.

The Decree dated 8 December 2017 introducing the amendment of various provisions related to spatial planning, environment and the surroundings has already brought about many amending acts in the Single Permit Decree with its so-called Codex train. One such amendment is the restriction of access to appeals against permit decisions.

How was it before?

The authority issuing the permit, who receives a permit request, is obliged to organise a public investigation about this permit request. During the public investigation a yellow notice is used to announce that a request has been made and anyone may take a look at the file at the local authority during a 30-day period and submit an objection to the request.

An administrative appeal can be submitted to the supervisory, hierarchical authority against permit decisions made in the first instance, by those including the person requesting the permit e.g. in the event of the permit being refused) or third-party stakeholders (e.g. in the event of a permit for a large building project). For example:

  • An administrative appeal can be submitted to the Executive branch of the Provincial Council against a single permit for planning activities in the first instance awarded by the Board of Mayors and Aldermen.

  • An administrative appeal can be submitted to the Flemish Minister for Environment against a single permit for the exploitation of a class 1 facility in the first instance awarded by the Executive branch of the Provincial Council.

This administrative appeal works on the basis of automatic suspension, which means that the building work or exploitation of the establishment may not be started in the event of a pending administrative appeal.

It was not obligatory to have raised an objection during the public investigation for an administrative appeal to be submitted.

What are the changes?

Anybody is still free to register an administrative appeal.

The Legislator has, however, added an additional filter: only those who submit an objection during the public investigation may register an administrative appeal with the hierarchical authority against a permit decision taken in the first administrative instance. Those that have not submitted an objection during the public investigation are therefore excluded from this administrative appeals process.

The Legislator's objectives in making this amendment included the following:

  • Creation of an efficient decision-making process due to the fact that objections are raised as early as possible in the procedure.

  • More rapid legal certainty for permit holders.

  • Standardisation of the procedural funnel which was already in place at the Council for Permit Disputes: it was always necessary for an administrative appeal to have been exhausted before establishing an admissible jurisdictional appeal at the Council.

This regulation applies to all requests for a single permit to have been submitted since 30 December 2017.

Some exceptions

On the condition that an objection must be made during the public investigation, the Legislator has made three exceptions:

  • If the request is modified after the public investigation, it may be that a local resident finds the permit unacceptable, despite having had no issue with it when the request was first launched.

  • It is also not entirely unimaginable that urban planning requirements or specific environmental terms enforced have such an impact that a local resident wishes to object, despite not having objected to the request as it was during the public investigation.

  • It may also be the case that a local resident was unable to express his/her opinions during the public investigation. The parliamentary preparations include reference to the following situations: the local resident was abroad on holiday for a month, the local resident was in hospital, a change occurred to the ownership structure, etc.

A controversial amendment

This amendment has caused much controversy right from day one. Certain Environmental organisations announced immediately that they plan to challenge these amendment in the Constitutional Court.

From the website of the Constitutional Court, where all pending matters can be consulted, it appears that the announced appeal for destruction has not yet been raised. However, Environmental organisations still have a little time to do so. The appeal for destruction must be launched at the Constitutional Court by 20 June 2018 at the latest (being 6 months after the publication of the Amendment decree in the Belgian Official Gazette).

For the time being you must therefore keep a good eye on the yellow posters because, before you know it, it will be too late!

We will of course be monitoring this for you.

Should you have any further questions or remarks, please do not hesitate to contact our team of experts.

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