Challenging an environmental permit will soon become more difficult. The Flemish government recently submitted a draft decree in with stricter rules to start proceedings. Present article further explains this future decree amendment.
Objective of the decree amendment
The draft decree aims to optimise the procedures before the Licensing Disputes Board. On the one hand, it aims to speed up the procedure in certain areas and, on the other, to reduce the number of procedures.
Content of the decree amendment
One of the measures taken by the Flemish government in this regard is a stricter interpretation of the required interest in a remedy. In human language: you have a valid reason needed for the may challenge of an environmental permit. Certain rules are now attached to this.
If any of the situations below occur, you can no longer challenge a permit.
- You will not be prejudiced by any illegality you invoke. For example, you cannot rely on the fact that a permit was not correctly published when you did file an objection. Therefore, you were already aware of the permit application.
- The illegality invoked extends apparently not to the protection of your interests. This comes into play, for example, when the minimum requirements for ventilation facilities are not respected. After all, as such, only the occupants of the building are affected. Specifically, you must be able to demonstrate that the permit could have negative consequences for you.
- You have apparently failed to timely raise the invoked illegality throughout the proceedings. If you suffer a detriment from something, you must report it in time. You cannot invoke it afterwards.
Implications for practice
The latter hypothesis in particular will have important consequences when contesting an environmental permit. If a violation of a rule is not invoked in time throughout the permit application procedure, it will therefore not be possible to invoke it in court afterwards in certain cases.
Of interest to mention here, though, is that a obvious negligence is required. After all, the law refers to a "manifest" omission. For example, if you knew that a licence was unlawful on a certain point, but you withheld it in order to be able to seek the annulment of the licence afterwards.
Conclusion: raise any illegality in good time
The proposed decree therefore requires you to raise any illegality as early as possible when you want to challenge an environmental permit. If you do not do so, you risk not being able to invoke this illegality afterwards. It is therefore best to seek legal counsel as early in the procedure as possible. This will ensure that your rights are optimally safeguarded.
Update: recent adoption of the decree
The Flemish Parliament recently approved the decree containing the stricter rules to initiate proceedings. You can consult this decree here.
The new rules apply to an annulment petition you file from 24 June 2021. Appeals already filed will be dealt with according to the previously applicable rules. Interest groups have already announced that they will start proceedings against this new decree change at the Constitutional Court. According to them, the decree disproportionately impinges on the right of access to justice.