Recently, we have seen a significant increase in appeals against the refusal of planning permission. Especially regarding the subdivision of plots to put an additional dwelling on them. In this context, we are often asked how the procedure with the province works. This article discusses step by step the procedure if your building permit was refused.
What steps does the appeal procedure to the province consist of?
In case your building permit was refused, the appeal procedure with the province consists of the following steps:
- Declaration of admissibility and completeness
- Collection of opinions
- Report provincial environment officer
- Decision competent authority
In some cases, this also includes the organisation of a new public enquiry. However, unlike the procedure at the municipality, the organisation of a new public enquiry is not mandatory in the appeal procedure. This will only be the case for amendments to the building application.
Thus, a new public enquiry will be required when the changes:
- prejudice human or environmental protection or good land-use planning;
- failing to meet objections from the initial public enquiry or failing to meet previously granted opinions;
- manifestly violate the rights of third parties.
The province judges freely whether or not a new public enquiry is required. It is not obliged to organise it. However, the province must always justify why it does or does not do so. If the province wrongfully fails to organise a new public enquiry, this could possibly lead to a cancellation of the granted permit.
Below, we briefly go over the different steps of an appeal to the province in case your building permit was refused.
Note: appealing yourself is not obvious. Read more about the pitfalls in making your own arguments for an appeal.
Step 1: Declaration of admissibility and completeness
This should be done within the 30 days following the filing of the appeal. In this step, the province considers whether:
- all legally required data and documents are attached to the appeal;
- the appeal was filed in time;
- the rolling fee of 100 euros was paid;
- copy of the appeal notice was delivered to the appropriate persons.
If certain documents are missing, they will be requested additionally. You then have 14 days to provide them.
Unlike the first-instance procedure at the municipality, the province will not consider the environmental impact of the application at this stage. This belongs to the assessment on the merits. If the province considers that there are significant effects on the environment and a full environmental impact report is required, it will reject the appeal.
Step 2: Sourcing advice
The province will again seek advice from the bodies that provided advice in the proceedings with the municipality. This is to assess whether the arguments you raise against the refusal warrant a different opinion. The time limits within which they must provide advice are laid down by law. If they do not issue an opinion within this period, it is assumed that the opinion is favourable.
Again, as in the procedure at the municipality, the opinions given are not binding. This is unless the law provides otherwise.
Step 3: Report provincial environment officer
When no advice from the environmental permit committee is required, the provincial environmental officer will prepare a report. In this report, you will find a proposed decision. Again, this report is not binding, but is usually followed.
If you want a copy of this report, you will have to ask for it in your introductory notice of appeal. If the report is negative, you can still prepare a supplementary note refuting the provincial environmental officer's opinion. The province must take this note into account in the final decision.
The province of Antwerp, for example, usually provides you with this report on the Thursday or Friday prior to the hearing, via the Omgevingsloket.
Step 4: Hearing
If you have asked to be heard in the notice of appeal, you will be invited to the hearing. At the hearing, you can explain your position orally. This will be done in the presence of a member of the deputation. The provincial environment officer and a representative of the municipality will also be present. These will also further explain their point of view orally at the hearing.
Step 5: Decision competent authority
After the hearing, the province will consider your case. Usually, the final decision follows within a few days to a week. However, for more complex applications, it may take longer. If the province does not make a decision within the statutory period, it is a tacit refusal.
What if the province rejects my appeal?
If an appeal to the province is rejected, you can go to the Council for Licensing Disputes go. The deadline for this is 45 days.
However, you can also consider a new application submit. In this new application, you can then take into account the reasons that gave rise to the earlier refusal.
Do you have questions about a refusal of your environmental permit? If so, please feel free to contact on. Confianz handles files for the whole of Flanders.