Constitutional Court: Neighbours may challenge the registration of a building "deemed authorised" without having to constantly consult the permit register.
In its judgment no. 109/2024 of 3 October 2024, the Constitutional Court ruled on the action for annulment of Article 4.8.11, § 2, 2°, b), of the Flemish Spatial Planning Code (VCRO), brought by Margot Van Reck and Jan Gheysens. This action concerned the time limit for bringing an appeal against decisions registering buildings in the permit register (buildings "deemed authorised").
Background
The applicants lived next to a plot with a building that was the subject of an application for registration as "deemed authorised". In the absence of a public inquiry or publicity of the registration decision, they feared that they would not be informed of this decision in time and would not be able to bring an appeal within the 45-day time limit provided for by the VCRO. They argued that this provision infringed their right of access to a court (enshrined in Article 13 of the Constitution, Article 6 of the European Convention on Human Rights and Article 9 of the Aarhus Convention).
The Court's judgment
In an earlier judgment, handed down following a preliminary question (no. 140/2023), the Court had already held that Article 4.8.11, § 2, 2°, b), of the VCRO infringed constitutional rights. This provision provided that the appeal period for an interested third party began the day after the building was entered in the permit register, without any form of publicity. According to the Court, this created an inequality of treatment between persons wishing to bring an appeal against registration decisions and those wishing to challenge environmental permits, for which publicity by means of posting is required.
The Court held that this difference in treatment was not reasonably justified, since it would be unreasonable to expect an interested third party to regularly consult the permit register in order to keep themselves informed of such registrations.
Decision
The Court annulled Article 4.8.11, § 2, 2°, b), of the VCRO, holding that it disproportionately undermined the rights of interested third parties and limited their access to a court. The judgment emphasises that the decree-making legislator will have to provide for other forms of publicity and time limits that guarantee both legal certainty for the applicant and the rights of neighbours and interested parties.
=> In practical terms, it is often still possible to challenge such a registration as a third party. Contact Laurent Delmotte or Bart Van Hyfte if you have any questions on this subject.
