The Council of State was seised of actions brought by local residents against planning permits issued without taking account of former municipal development plans (PCA), since those plans had been declared automatically repealed pursuant to Article D.II.66, § 4, of the CoDT. It referred preliminary questions to the Constitutional Court on the constitutionality of this article.
This article provides for the automatic repeal (and without prior assessment of the environmental effects of that repeal) of former PCAs (approved before 22 April 1962 and not revised after that date). Since the entry into force of the CoDT, PCAs have become SOLs (local guidance schemes).
The Constitutional Court recalls the case law of the Court of Justice of the European Union on the environmental impact assessment of certain plans and programmes, from which it follows in particular that the repeal of these plans is also, in principle, covered by Directive 2001/42, and must therefore be the subject of a prior environmental impact assessment.
It concludes its examination with the finding that the automatic repeal of all PCAs (which have become SOLs) approved before 22 April 1962 is contrary to the principles of equality and non-discrimination and to Directive 2001/42, since it has not been established by the Walloon Region that they are all covered by the exceptions to the obligation to assess in advance the environmental effects of a repeal.
The Constitutional Court therefore ruled that Article D.II.66, § 4, of the CoDT (Territorial Development Code) infringes Articles 10 and 11 of the Constitution (equality and non-discrimination) and the European Union Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment.
This judgment, handed down on a preliminary question, could be followed by an annulment judgment, since the declaration of unconstitutionality in a preliminary ruling opens a new annulment period of six months from the publication of the judgment in the Belgian Official Gazette.
This judgment creates a significant risk for every planning permit that departs from a PCA (now a SOL) adopted before 22 April 1962 and not amended since, and automatically repealed by the provision held to be unconstitutional by the Court.
Questions? Contact RESOLVED — Laurent DELMOTTE
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