In an earlier post, we explained the steps you can take when your planning permission is refused. This refusal can also be tacit. A tacit refusal of an environmental permit occurs when the government does not take a decision on your application within a certain period of time. But what is this deadline? And how do you know when this deadline has passed? This article provides more information on a tacit refusal of an environmental permit.
When is there a tacit refusal of an environmental permit?
In principle, the government to whom you submit your application is obliged to make a decision on it. The law prescribes the time limit within which this must be done. If a decision is not taken within this time limit, there is a tacit refusal. There can also be a tacit refusal on appeal. The initial decision is then retained.
What is the deadline for making a decision on an application?
Within which timeframe the government must take a decision, depends on the procedure followed. There are two different types of procedures: the ordinary and the simplified procedure. The latter applies, for example, to applications that are fully in line with a municipal or provincial spatial implementation plan.
The decision period is:
- 60 days for the simplified procedure;
- 105 days in the ordinary procedure when no opinion of the environmental permit committee is required;
- 120 days in the ordinary procedure when an opinion of the environmental permit committee is required.
In the normal procedure can this period can be extended once by 60 days. No extension can take place in the simplified procedure. The extension in the ordinary procedure takes place in the following cases:
- If the application is amended and a new public research needed;
- if the application is accompanied by a decision on the construction of a municipal road.
The time limits are always counted from the day after the application was declared admissible and complete. If the board does not take a decision on admissibility, the time limit starts to run the 30th day after the date on which the application was submitted.
What is the deadline for an appeal decision?
The deadline for taking a decision on appeal also depends on the initial procedure. Was initially the simplified procedure followed, this period shall be 60 days. Was initially the normal procedure followed, this period shall be 120 days. This is regardless of whether an opinion from the environmental permit committee is required.
The cases in which this period may be extended are the same as those for the initial processing of the application. In addition, the time limit may be extended by 60 days at the reasoned request of the applicant. In the case of a separate appeal against the decision on the road claim, these time limits are suspended until a decision is made on this matter.
Again, the time limits are always counted from the day the last appeal is declared admissible and complete. In the absence of a decision on admissibility, the time limit begins to run the 30th day after the date on which the last appeal was filed.
What can I do after a silent refusal?
It is appropriate to always appeal against a tacit refusal. This is done with the province or the Flemish Government. The deadline for this is 30 days from the day after the decision period expires. If you do not lodge an appeal in time, the refusal of the building permit becomes final. If the appeal period has already expired, you can submit a new application. In this case, a new time limit for making a decision starts to run.
What if even on appeal there is no timely decision?
Appeals may also fail to reach a timely decision. In this case, the appeal is also deemed to be tacitly dismissed. The initial decision is then retained. Against a tacit rejection of the appeal, you can initiate proceedings before the Licensing Disputes Board.
The deadline to go to the Licensing Disputes Board is 45 days. This will usually annul the tacit decision. After this, the province or the Flemish Government will be given a new deadline to decide. If you do not go to the Council for Permit Disputes in time, the initial decision becomes final.
What if I did not file an appeal in time?
If you were unable to appeal the tacit refusal in time, you can always consider filing a new application. The possibility of doing so depends on which decision has become final.
After all, if the final decision is a tacit refusal, you can try to submit the application again unchanged. After all, one cannot usefully refer to the earlier final decision in this case as it was not substantiated.
If this initial decision was a reasoned refusal, you will only be able to submit a new application taking these reasons into account. Or if the regulations have changed in the meantime. This hypothesis will arise, for example, if your application was first refused with reasons and your appeal was subsequently tacitly rejected without you having gone to the Council for Permit Disputes.