Since 2016, the Flemish Region has merged planning permits (stedenbouwkundige vergunningen) and environmental permits (milieuvergunningen) to issue only "environmental permits" (omgevingsvergunningen).
A first significant amendment took place in 2017 (the "codextrein").
On 9 May, the Flemish Parliament adopted a decree once again substantially amending the rules on environmental permits, entitled "Decree of 17 May 2024 amending the regulations on environmental permits as regards the introduction of a modular environmental permit procedure and the environmental decree" (Decreet van 17 mei 2024 tot wijziging van de regelgeving betreffende de omgevingsvergunning wat betreft de invoering van een modulaire omgevingsvergunningsprocedure en het omgevingsbesluit).
On the one hand, this decree revises the existing procedures, making them more flexible, and, on the other hand, introduces a procedure that combines both permit aspects and the amendment of a "Ruimtelijke Uitvoeringsplan" (spatial implementation plan), the "environmental decree" (omgevingsbesluit).
- The "modulaire omgevingsvergunning" or "modular environmental permit"
As regards the procedural amendments, the aim of the reform — undertaken after an evaluation of the current regime — is to make procedures more flexible and therefore faster, and to avoid "unnecessary" refusals that force applicants to restart their procedure from scratch, causing them to lose valuable time.
The two current procedures, namely the "simplified" (vereenvoudigde) or "regular" (gewone) procedure, will be replaced by a "modular procedure". The "modular" procedure aims to streamline applications and to facilitate and encourage adjustments and corrections — where appropriate on several occasions — during the course of a project.
The reform also provides for the creation of a procedure for amending a permit already granted, before or during its performance, comparable to the provisions of the Brussels Spatial Planning Code on the amending permit, which clarify the current regime and provide a specific, lighter procedure for amendments before or during performance, while protecting the main permit.
- The "omgevingsbesluit"
Alongside these numerous procedural innovations, another important innovation of the decree is the "environmental decree" (omgevingsbesluit).
This new instrument, which to a certain extent merges the characteristics of a plan and a permit, is intended to provide a solution for projects — often of general interest — that under the current procedure first require an amendment of the plans in force and then a permit process, a process that is long (two procedures) and consequently costly.
This procedure is therefore intended to make it possible, in the context of the bouwshift (densifying in certain places in order to reduce or even avoid the sealing of new surfaces), to increase the "spatial yield" (ruimtelijk rendement) and to reduce situations of "zonevreemdheid" — that is, the fact of a building being located in an area in which it is not supposed to be, which entails significant legal consequences that generally reduce the permit possibilities for that building.
The "environmental decree" is also intended to offer a more adequate solution to businesses that have difficulty expanding because of the zoning of the plots they occupy or of neighbouring plots — solutions that are only imperfectly implemented by means of the current "planning attestation" (stedenbouwkundig attest).
The objectives of simplifying and speeding up procedures are commendable. However, the Legislation Section of the Council of State, which delivered a highly critical opinion on certain points of the decree, has already provided arguments to those who oppose projects, who will be able to challenge the reform by seeking the annulment of certain articles before the Constitutional Court (within six months of publication in the Belgian Official Gazette, which had not yet taken place at the time of writing), or by suggesting that the administrative courts — including the Council for Permit Disputes (Raad voor Vergunningsbetwistingen) — refer preliminary questions.
The future will tell whether the objective of increasing the speed of permit issuance and reducing "Kafkaesque" situations — to use the words of the Environment Minister, Ms Demir — has been achieved.
The entry into force of the decree will be determined by the Flemish Government in one or more decrees to be adopted at a later date.
The link to the Flemish Parliament's website with the adopted text, the opinions — including that of the Council of State — and the parliamentary records:
https://docs.vlaamsparlement.be/pfile?id=2060500
Do you have questions about planning and the environment in the Flemish Region?
Contact Laurent Delmotte (ld@resolved.law), Bart Van Hyfte (bv@resolved.law) or Maximilien Storme (ms@resolved.law) by email or on +32 2 315 53 00, or visit www.resolved.law
