The Flemish Parliament adopted on 17 May 2024 two decrees that serve the further modernisation of Flemish Region urban development legislation: (i) the Collective Decree (Verzameldecreet) that amends no less than 22 regulations and (ii) the Decree on Environment Decisions and the Modular Environment Permit procedure (Het Decreet Omgevingsbesluit en Modulaire omgevingsvergunningprocedure) that makes changes to the Environment Permit Decree (Omgevingsvergunningsdecreet).
These amendments are in line with the policy objectives for clear, transparent and unambiguous regulation and a reduction in regulatory burden. The Collective Decreewas published in the Belgian Official Gazette on 10 July 2024, and came into force on 20 July 2024. The entry into force of the Decree on Environment Decisions and the Modular Environment Permit procedure depends on its announcement in the Official journal and on further implementing measures.
The Collective Decree - various changes concerning urban development
1. Changed scope of permit exemptions and notifications
The Flemish legislator wants to create uniformity regarding works/actions that are exempt from environment permit or subject to mere notification (meldingsplicht). For now, a local authority could still stipulate permits and notification obligations itself via local urban development regulations (Stedenbouwkundige verordeningen), which could lead to confusing policy and unclear rules. The Collective Decree cancels this possibility for local authorities.
In the amended system the Flemish Government will establish an exhaustive list of works/actions that are exempted from permits or subject to notification. Local authorities may only adopt local regulations on permit exemptions and notifications concerning works/action included in this list. They cannot change a permit requirement into a notification regime and they cannot exempt works/acts under notification regime.
The permit exempted works/acts will relate to occasional or very frequent works/acts with a limited impact. Notifications will be refocused on those temporary acts for which a notification is appropriate.
It is also important to note that local authorities shall adapt their existing urban development regulations in accordance with the aforementioned list within two years of its adoption. If regulations are not adapted in time, they will be repealed by operation of law.
2. Adjustment of the completion rule (afwerkingsregel)
The so-called completion rule allows a dwelling to be built against a provisional façade (wachtgevel) of another dwelling in agricultural areas as well as in areas where residential development is normally not allowed. In practice, this leads to additional zoning non-compliances (zonevreemdheid). The Collective Decree cancels this quite general rule and maintains it only in residential reserve areas (woonreservegebied).
3. Adjustments regarding possibilities for zoning non-compliant changes of use
The Flemish Urban Development Code provides for limited possibilities to obtain an environment permit for zoning non-compliant changes of use (zonevreemde functiewijziging), but excludes the possibility to apply for a regularisation permit on this subject. The Collective Decree introduces such possible regularisation (e.g. for a building in an industrial area that has been converted into an office). This does not change the applicable zoning non-compliant regulations and does not create support for inappropriate use of space. Moreover, it is a derogation scheme that shall be interpreted restrictively. In addition, the test with the appropriate urban development (de goede ruimtelijke ordening) must always be carried out and the relevant authority shall pay attention to the functional suitability (functionele inpasbaarheid) of the use and its impact on the existing environment. It is therefore explicitly stipulated that the change of use must not interfere with the activities of licensed or considered licensed (vergund of vergund geacht) businesses in the surrounding area.
4. Duty of justification regarding derogation regimes in permit applications
The Collective Decree inserts the rule that a derogation scheme can only be granted in an environment permit upon a formal motivation in the permit application. In accordance with current case law, derogation regime must be interpreted restrictively, and a public enquiry must be organised in most cases. The public enquiry gives interested third parties the opportunity to formulate their objections before the derogation is decided on. The licensing authority can then take an informed decision and consider (nuisance) concerns of neighbouring interested parties. This modification means that the applicant himself will have to invoke correct legal provisions in the application and cannot leave this to the licensing authority.
5. Planning compensation in urban development plans
Planning compensation (planologische compensatie) means that the relevant authority, in planning initiatives (e.g. an urban development plan) creating additional offer of residential, commercial, recreational or community facilities, will simultaneously neutralise poorly located or legally redundant offer insofar it is present on its territory. This obviously fits in the general policy objective of safeguarding open space and slowing down the increase in additional land intake. Planning compensation does not affect the possible application of planning damages/benefits regulations.
The Modular environment permit procedure and Environment decisions
In future the environment permit procedure will become modular, so that, depending on the content and nature of the application, the appropriate modules can be used. The current distinction between the ordinary and the simplified procedure is abolished. The new regime will e.g. allow to decide on a case-by-case basis whether a public enquiry needs to be organised. This facilitates a solution-oriented and more flexible permitting approach.
The environment decision (omgevingsbesluit) is a new legal instrument to accelerate the realisation of (i) spatial impulse projects, (ii) works of general interest and (iii) works on business activity.
The environment decision is based on an application to amend an existing urban development plan for a project area. The new regime will avoid that a zoning change must first be obtained before an environment permit can be applied for, which is very time-consuming and inefficient. An environment decision can be used to deviate from existing planning conditions based on a provisionally adopted urban development plan, at the initiative of the applicant as part of the application file. It grants a right for a final adoption of the urban development plan, provided the environment permit is duly and timely implemented. Planning aspects are thus integrated into the permit procedure.
Spatial impulse projects are projects that increase the spatial efficiency of an area in a qualitative way and have a high degree of realisation orientation. They explicitly pay attention to function interweaving, reuse or temporary use of space.
Works of general interest are related to projects designated by the Flemish Government concerning public infrastructure or public roads, utilities, infrastructure on the territory of several municipalities, or infrastructure for the benefit of a public service.
An environment decision for business activity serves as a tool for zoning non-compliant businesses that have been established for a long time and can stay at the involved location. These are businesses with short-term urban development needs that cannot reasonably relocate elsewhere, usually due to the lack of available land within the appropriate zoning. The aim is to provide legal certainty and a long-term solution for these activities. In this respect, the environment decision replaces the planning certificate (planologisch attest), which is abolished.
Conclusion
The Collective Decree and the Decree on Environment Decisions and Modular Environment Permit procedure are important further steps in the modernisation of Flemish environment law. The reforms aim to increase clarity, transparency and reduce the regulatory burden and to enable a more efficient and solution-oriented permit approach. The Collective Decree ensures more uniformity in urban development and can provide solutions for zoning non-compliant change of use and for planning compensation. The Modular Environment Permit procedure Decree, for its part, introduces a more flexible, modular permit procedure and the environment decision, which can accelerate the realisation of spatial impulse projects, works of general interest and business activity. The implementation of these changes depends on further adjustments to the Environment Permit Regulation and changes to be made to the digital platform in which permit applications are filed and managed (Omgevingsloket).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.