In its judgment no. 111/2024 of 24 October 2024, the Constitutional Court ruled on the preliminary question relating to Article D.II.36, § 2, second paragraph, of the Walloon Territorial Development Code (hereinafter "CoDT"), referred by the Council of State. The question raised was whether the said provision of the CoDT — authorising the siting of wind turbines in agricultural areas, under certain conditions, without requiring a derogation from the sector plan, contrary to the earlier rules of the Walloon Code of Spatial Planning, Urban Planning and Heritage (hereinafter "CWATUP") — is compatible with Article 23, third paragraph, 4°, of the Constitution, which guarantees the right to a healthy environment and the "standstill" principle.
Background
In October 2018, the public limited company "Luminus" submitted to the city of Bastogne an application for a single permit covering, among other things, the siting and operation of four wind turbines. In October 2019, the requested permit was issued by the delegated and technical officials. In November 2019, the municipal college lodged an administrative appeal against this decision with the Walloon Government. In March 2020, the appeal was rejected. In June 2020, the city of Bastogne asked the Council of State to annul this decision on the ground that Article D.II.36, § 2, second paragraph, of the CoDT (on which the contested decision is based) significantly reduces, in its view, the right to the protection of a healthy environment. In September 2023, the Council of State referred a question to the Constitutional Court regarding the possibility of siting wind turbines in agricultural areas and the conditions to be met for such siting.
The applicant before the Council of State emphasises that the aforementioned provision — in that it makes the siting of wind turbines in an agricultural area subject to the sector plan, subject to compliance with only two conditions, contrary to what the CWATUP provided (the installation of wind turbines in an agricultural area constituted a derogation from the sector plan, which was granted only exceptionally) — entails, without valid justification, a significant regression in environmental protection, which could compromise the primary purpose of agricultural areas.
The Walloon Government, for its part, argues that the new provision does not significantly reduce environmental protection, because it introduces restrictions, in particular by limiting the siting of wind turbines near communication infrastructure and economic activity areas. Finally, the company "Luminus" considers that this provision of the CoDT strengthens environmental protection by grouping wind turbines in specific areas, thereby reducing nuisance elsewhere and promoting renewable energy, in line with the constitutional objectives of sustainable development.
Decision
The Court concludes that Article D.II.36, § 2, second paragraph, of the CoDT does not infringe Article 23, third paragraph, 4°, of the Constitution. It considers that the authorisation to site wind turbines in agricultural areas, although it differs from the earlier regime, remains framed by restrictions and contributes to the objectives of sustainable development, in particular those relating to renewable energy.
- In conclusion, the Court decides that the provision of the CoDT is compatible with Article 23, third paragraph, 4°, of the Constitution and the standstill principle. Indeed, not every measure in the field of urban planning and spatial development necessarily has an impact on the right to the protection of a healthy environment. In the present case, the regression in the level of protection of the right to a healthy environment effected by Article D.II.36, § 2, second paragraph, of the CoDT — quod non — is not significant.
Questions about this judgment? Contact Laurent Delmotte
