In accordance with the established case law of the Council of State and the Council for the Settlement of Disputes over Planning Permits, an amendment to a plan could only be implemented during the proceedings if there was a an explicit request from the applicant as it stood. Local authorities were no longer permitted to impose a minor amendment to the plans via a planning condition in order to make the application eligible for planning permission, as this led to the legislation being misinterpreted. In practice, this led to projects being unnecessarily rejected when, with just a minor adjustment, they would have been perfectly acceptable.
The solution set out in the Environment Consolidated Decree
In the Explanatory Memorandum (Article 96, page 73), the legislator clearly states that this strict adherence to formalities was never the intention:
- The government is once again granted the power, by decree, to on one’s own initiative (ex officio) to impose limited amendments to the plans via the planning permission conditions.
- An explicit request or initiative on the part of the applicant is required for this no longer required, provided that the alterations remain “limited” and the project is thereby made eligible for planning permission.
This is a huge boost for the sector: the government can once again take a solution-oriented approach, rather than having to reject applications on purely bureaucratic grounds.
2. Legal certainty at last: introduction of a time limit for lodging an appeal against the licensing register
A second fundamental shift centres on the planning permission register, in particular with regard to the inclusion of structures covered by the “presumption of planning permission” (the so-called deemed to have been granted (statute).
The reason: the Constitutional Court
Previously, the rule was that an appeal against the inclusion of a structure in the planning permission register could only be lodged within 45 days of the structure’s inclusion in the register. However, no provision was made for the publication of such a decision. As a result, local residents were often unaware that an appeal period was running and frequently found out too late. The Constitutional Court, however, tore this rule to shreds (Judgment No. 140/2023). The Court ruled that it is unconstitutional and unreasonable to expect a citizen to constantly monitor the municipal register to see whether their neighbour’s building has suddenly been classified as ‘deemed to have been granted planning permission’. The result? For years, registrations remained open to challenge as soon as a third party gained “actual knowledge” of them, which led to considerable legal uncertainty.
The new rules: active posting and a 45-day appeal period
In order to restore legal certainty for both citizens and third parties, the Consolidated Decree on the Environment (Articles 98 and 100, pages 74–75) introduces a completely new publication regime. The details of this are yet to be worked out by the Flemish Government. It is likely that the system of public notice, as used for ordinary planning permission decisions, will be followed for this purpose. In practical terms, this means:
- Mandatory notice: Decisions to include entries in the licensing register as ‘deemed authorised’ are likely to be made from now on must be actively publicised and displayed, exactly as is the case today with a standard planning permission application.
- Strict time limit for lodging an appeal: Third parties will then receive 45 days' time – starting from the first day after the notice was posted – to lodge an appeal with the Council for Licensing Disputes.
Has the 45-day period expired without an appeal being lodged? If so, the entry is final and the presumption of authorisation is definitively safeguarded against subsequent claims by third parties.
What does this mean in practical terms for your case?
Although the legislation is still going through the parliamentary process, it is already setting out the broad outlines of the near future. For local authorities, this means they must prepare to play a more active role in plan amendments and a new logistical process for the publication of decisions for inclusion in the planning permission register. For owners and developers, this offers the prospect, in the long term, of a faster route to planning permission and watertight protection of historic building rights.
Confianz is closely monitoring the parliamentary debate on the Environment Omnibus Bill. Do you have anydiscuss the impact of these future regulations on your current property project or the status of your application for inclusion in the licence register? Please no-obligation enquiry Contact us for strategic advice.
