There is regular discussion within Flemish environmental law about the legal force of obsolete subdivision regulations. Since the decree amendment of 8 December 2017 regulations of a subdivision that is older than 15 years at the time of the permit application no longer constitute, in principle, an automatic ground for refusal (with the exception of regulations on roadside and public green space). This allows the licensing authority to move away from historical, often outdated spatial visions and optimise spatial efficiency.
However, this does not mean that these old regulations have been completely wiped off the map. The government retains the decretal possibility of ruling that certain regulations do still reflect the criteria of good spatial planning. However, if it uses this framework, a strict and special duty to state reasons rests on the administration.
The distinction between actual state and current spatial perceptions
In practice, we often encounter decisions in which the government justifies the application of an old regulation (e.g. on the location of annexes on the plot boundary) by merely referring to the existing, actual situation in the surrounding area. The reasoning then reads: *”Since there are already similar structures on the plot boundary in the neighbourhood, the regulation still reflects good planning. ”*
From an administrative law perspective, this justification is fundamentally flawed. Indeed, a sharp legal distinction must be made between two different grounds for review:
- Actual assessment of good spatial planning: The assessment of whether a specific application is compatible with the actual existing condition in the immediate vicinity.
- The planning timeliness test: The rationale why a specific, decades-old subdivision regulation should still be considered a current and compelling criterion today.
Core issues: That the existing surroundings were built in the past in accordance with the subdivision regulations is only logical; after all, at the time, it was compulsory to follow these regulations. Therefore, from the mere fact that the surroundings look like this, one can not automatically be inferred that the regulations still meet contemporary, evolved understanding of good land-use planning.
What does justice demand of the government?
If a permitting authority wishes to retain a rule older than 15 years as a mandatory review framework to grant or refuse a permit, it must demonstrate that the rule has “stood the test of time”. It must provide concrete and specific reasons as to why the underlying spatial vision of the rule still has significant, current value at that particular location.
Moreover, the board should not muddle the systems: it cannot insist on the old regulations for one aspect (such as zoning) while stating for another aspect (such as building-free strips) that the regulations should be disregarded due to their age, unless this is explicitly and coherently justified.
Conclusion for practice
For licensing practice, the lesson is clear. Authorities can no longer suffice with a circling argument in which the actual condition (which is the historical consequence of subdivision) is used to prove the current value of that same subdivision. Is it argued by local residents or stakeholders that an old regulation is no longer in line with contemporary good urban planning? Then the government is obliged to answer this all the more circumstantially, accurately and from an up-to-date spatial viewpoint. The same also applies if the government wants to refuse the permit on the basis of such an old regulation. In this case, too, it will have to include the same special motivation. If this does not happen, there is a real chance that the decision will fail in court due to a formal and substantive lack of substantiation.
Do you have questions about outdated subdivision regulations or subdivision regulations older than 15 years? If so, please feel free to contact Environmental law lawyer Niels Vansimpsen.
