In Belgium, the regions are authorized to regulate zoning and planning. The regions are the:
The local authorities (provinces and municipalities) will apply the regional legislation and can make their own initiatives regarding planning.
The most important zoning legislation currently applicable is:
The Brussels Code regarding Public Planning of 9 April 2004 (Brussels Capital Region).
Last modified 22 Mar 2024
Public law does control the construction of new buildings or the refurbishment of an existing building of a landowner on its land, by zoning plans and permits.
In the Flemish Region, the Flemish Public Planning Code forbids the construction of a new building without a integrated environmental permit for building. This permit is granted most of the time by the municipal council of the area in which the real estate is situated, by application made by the landowner primarily. The municipal council investigates the compatibility of the type of building with the type of zone (eg rural or industrial, habitation) that is indicated by the zoning plans. Zoning plans are plans that define the “destination” and the applicable building policies (eg height of buildings, materials, distance to the street) of the zone, that is covered by them. The planning requirements in zoning plans vary in their level of detail.
If a building is constructed without the necessary permit, the landowner risks criminal prosecution and possibly an order to demolish the building. For refurbishment works, a permit is not always necessary. An integrated environmental permit is only necessary when these works are not qualified as “normal maintenance works”, for example, works regarding “constructive elements” of the building are not maintenance works.
In the Brussels Capital Region, the Brussels Code regarding Public Planning provides for a similar regime. A building permit, granted by the competent municipal council, is primarily always necessary for the construction of new buildings. If a building is constructed without the necessary permit, the landowner risks criminal prosecution and possibly an order to demolish the building. For refurbishment works, a building permit is only required when the works are not qualified as “maintenance works”. This is a concept that is specified by case law.
In the Walloon Region, the Code for Territorial Development provides for a very similar regime to the Brussels Capital Region. The rules regarding the application for a permit and the sanction regime and refurbishment works are practically the same. Maintenance works generally only require a permit when they affect the structure of the building, its volume or “architectural aspects” of the building.
Last modified 22 Mar 2024
Public law controls, in part, the design, appearance and method of construction of any new building. This is governed by planning instruments, at regional, provincial and local level. The applicable related regulations are numerous.
In the Flemish Region, the Flemish Public Planning Code states that “public planning policies”, (being detailed policies or requirements regarding, amongst other matters, design, appearance, and access to public utilities), can be made at the regional, provincial and municipal level. In principle, the most detailed policies are made at municipal level.
In the Brussels Capital Region, the Brussels Code regarding Public Planning of 9 April 2004 contains similar provisions. The Code states that “public planning policies” can be made at regional and municipal level. Therefore, in the Brussels Capital Region, there are no provincial public planning policies.
The regional policies take precedence over municipal policies. Also, the municipalities are legally obliged to amend their policies, if they are incompatible with the region’s policies.
In the Walloon Region, the Code for Territorial Development states that ‘public planning prescriptions’ can be made at regional and municipal level. Again, therefore there are no provincial public planning prescriptions in the Walloon Region. Under the Code for Territorial Development, only the ‘public planning prescriptions’ at regional level are compulsory (regional spatial plans and urban-planning guide to the exception of some provisions of said guide which are indicative), whereas the ‘public planning prescriptions’ at municipal level are indicative.
Last modified 22 Mar 2024
Public law governs the use or function of new buildings as well as existing buildings. Zoning plans determine which functions are possible on a certain piece of land.
In the Flemish Region, the Flemish Public Planning Code provides that ‘executive zoning plans’ regulate the ‘destination’ or ‘function’ of certain areas of land, eg. agriculture, habitation, industrial, recreation or nature protection. These destinations or functions – governed by executive zoning plans at regional, provincial or municipal level – limit the possible functions of new and existing buildings. The hierarchy relating to region, province and municipality applies here as well: ‘regional executive spatial plans’ take preference over ‘provincial or municipal executive spatial plans’.
In principle, where a building’s function is incompatible with a designation defined in a spatial executive plan, no permit will be granted, unless an exception regime applies. In fact, there is no general possibility, even after a public consultation, of granting a permit that is incompatible with the applicable designation policies. The exceptions are precisely defined and set exact limits. The function of existing buildings cannot be changed at will. For some changes of function, the Flemish government has implemented a mandatory integrated environmental permit for building, governed by an Executive Decree of 14 April 2000, that has been modified several times.
In the Brussels Capital Region, the Brussels Code regarding Public Planning of 9 April 2004, states that ‘destination plans’ can be made at regional and municipal level. There are therefore no ‘provincial destination plans’ in the Brussels Capital Region. These destination plans limit the functions in certain areas (eg agriculture, habitation, industry, recreation, commerce or nature protection). A building permit will not generally be granted when the future function of the building is incompatible with the destination of the ground in the applicable spatial plan, unless exception regimes apply. The regional destination plans have preference over the destination plans of the municipality. Also for existing buildings, the function cannot be amended freely. The Brussels Government has created the requirement for a mandatory building permit, for certain changes of function of existing buildings.
In the Walloon Region, the Code for Territorial Development contains similar provisions. Regional and municipal ‘zoning plans’ limit the designation and use of areas of land (eg agriculture, habitation, industry, commerce or nature protection). A building permit will not be granted in principle when the future function of the building is incompatible with the destination of the ground in the applicable spatial plan, unless exception regimes apply. The regional spatial plans have a compulsory nature whereas the communal spatial plans have only an indicative nature. The function of existing buildings cannot be changed freely under the provisions applicable in the Walloon Region.
Last modified 22 Mar 2024
The regions are exclusively competent for regulating public planning. Therefore, the respective parliaments of the regions (Flemish, Walloon and the Brussels Capital Region) have the competence and ability to regulate the development and designated use of individual parcels of real estate in their respective regions.
Last modified 22 Mar 2024
Certain kinds of installations require a permit for construction works, as well as a permit for the exploitation of an installation.
In the Flemish Region, since 1 January 2018, both permits are integrated in the new (integrated) environmental permit, which is now in principle granted for an indefinite period.
A difference between the environmental permit for environmental matters and the environmental permit for building is that this last one can be freely transferred if the real estate is transferred, since it is linked to the real estate itself. Environmental permits including environmental matters are granted to a specific company or person, and if activity stops or the activity rights for the relevant installations are transferred to another person or company, this must be notified to the competent authorities.
In the Flemish region, the environmental permit is regulated by a Decree of 25 April 2014 concerning the ‘integrated environmental permit’. In the Brussels Capital Region, the environmental permit is regulated by a Decree of 5 June 1997 concerning the environmental permit. In the Walloon Region, the environmental permit is regulated by a Decree of 11 March 1999.
For some ‘commercial developments’ (mostly retailers), the Decree of 15 July 2016 on the Integrated Trade Establishment Policy (Flemish Region) and the Decree of 5 February 2015 on Commercial Establishments (Walloon Region) provide for a regulatory framework regarding certain commercial activities requiring a ‘socio-economical permit’. This permit is required for developments with a gross surface of more than 400m². The Brussels-Capital Region combined the application procedures for commercial establishments and building permits through the Ordinance of 8 May 2014, in accordance with the guidelines outlined in the Brussels Regional Development Code (CoBAT). As a result, the previous socio-economic permit is no longer required as a separate permit in the Brussels-Capital Region.
Last modified 22 Mar 2024
In the Flemish Region, the Brussels Capital Region and the Walloon Region, there is no distinction made between a ‘permission for designated use’ and a ‘building permit’. A permission for designated use is covered by a 'building permit'.
In the Flemish Region, applications for environmental permits for building are granted mostly by the municipal council. In principle, the municipal council’s administration decides within 30 days upon the ‘completeness of such request’. Executive decrees specify further which instances need to be detailed in specific permit procedures, and whether a public consultation will be held.
The timing of the procedures is similar to the procedures on the municipal level.
In the Brussels Capital Region and in the Walloon Region, applications for building permits have to be granted by the municipal council in which the property is situated. There is a similar procedure in the Flemish region.
Last modified 22 Mar 2024
Third parties have the right to object where regional legislation provides that a ‘public consultation’ has to be held for certain permit applications. In such situations, public consultation is not mandatory – there is no right as such to object. However, it is possible to file an informal objection with the relevant authority, that might have an impact on the decision process.
In the Flemish Region, the Flemish Government specified the applications which require a public consultation (those applications which required the 'common procedure'). Public consultations are always mandatory when they require an Environmental Impact Assessment. The issue of Environmental Impact Assessments and the scope of their application was a hot topic of discussion, after the European Court of Justice stated in a Judgement of 24 March 2011 that Flemish (and Brussels and Walloon) EIA legislation is not in compliance with EU law. By the Decree of 23 March 2012 the Flemish region adapted its EIA regulation to comply with the judgement. From now on, smaller-scale projects that previously were excluded from the EIA requirement, will be screened for the need for a full EIA. This means that currently, there are EIA-mandatory projects, EIA-exempt projects and projects requiring screening in the Flemish Region.
The public consultation lasts for 30 days.
In the Brussels Capital Region, the Brussels Code regarding public planning of 9 April 2004 differs from the Flemish regime of public consultation. The consultation period must last for a minimum of 15 days. The Brussels Code regarding public planning states that the municipal council has the power to organize a public consultation regarding special use designation plans and municipal development plans. In the case of regional use designation plans or regional development plans, the Brussels Government has power to organize a public consultation. The competent authority is free to decide on the start and end dates for the consultation. For special use designation plans, the consultation period is 30 days. For municipal development plans, a longer consultation period of 45 days applies. The consultation period for regional use designation plans and regional development plans is 60 days.
In the Walloon Region the Code for Territorial Development provides a similar legal regime to that of the Flemish Decree. The Code states that the Walloon Government must regulate, by Executive Decree, those permit applications which require mandatory public consultation. Amongst others, the following permit applications require public consultation:
The duration of a public consultation in the Walloon Region is 15 days.
Last modified 22 Mar 2024
This is possible in the case of an appeal against a decision granting or refusing a permit by the applicant, a public authority or in some cases, third parties. The Council of State, which can suspend and annul permit decisions, is the competent judicial body for the Walloon Region and Brussels-Capital Region.
For the Flemish Region, a new judicial body has been created and named the Council of Permit Disputes (it has been functioning since November 2009), which has taken over the responsibility for suspending and annulling permit decisions from the Council of State. Legal practice showed that this Council (which originally consisted of three Judges in three different Chambers) faced a significant workload. Seven judges were added over the years to this Council in order to counter the delays. Currently, it can be expected that it takes on average 12 months to decide on an annulment procedure relating to an integrated environmental permit. The Council of State is the ‘Cassation’ Judge for decisions of this Council for Permit Disputes.
Last modified 22 Mar 2024
In the Flemish Region, the decision upon granting the permit will be generally delivered within a period of 105 days after its delivery by the applicant (this becomes 120 days, if the advice of the advisory council is needed). For applications within the scope of the 'simple procedure', a decision will be delivered within a period of 60 days.
In the Brussels Capital Region, the municipal council sends its decision to the applicant within a period of 45, 75, 90 or 160 days, depending on whether the advice of the public planning officer is needed or not, and/or whether special rules apply for the publication of the decision.
In the Walloon Region, the municipal council generally sends its decision to the applicant within a period of 30 up to 115 days (with possible increase of 30 days) depending on whether the advice of the public planning officer is needed or not, and/or whether special rules apply for the publication of the decision.
Last modified 22 Mar 2024
Each of the following three regions allow for the ability for a party to appeal against a decision.
In the Flemish Region, in the integrated permit procedure, permits can be delivered by the municipal council, the Deputation of the Province or the Flemish Government. The possibilities of appeal change as following:
The legal effect of an annulment of the Council for Permit Disputes is that the relevant decision is considered to have never existed in law. The legal effect of a suspension of a permit decision, is that this decision has no legal effect, for as long as it is suspended. The Council for Permit Disputes decides on the suspension procedure before it decides on the annulation procedure.
In the Brussels Capital Region, the Brussels Code regarding Public Planning of 9 April 2004 provides that the decision regarding a building permit is generally made by the municipal council (in some exceptional cases by the regional authorized public planning officer). The applicant can file an appeal against the decision with the Government of the Brussels-Capital Region, to be submitted within 30 days after the day on which the decision is received. The appeal is forwarded to the Public Planning College, which issues an advice within 75 days.The Government decides on the matter within 60 days of receiving this advice. A separate mechanism for appeal is available for the municipal council if it wishes toappeal a permit decision made by the public planning officer.Against the decisions in appeal, an appeal in (suspension and) annulation with the Council of State remains possible.Please note that these appeal procedures only apply to permitsapplied for after 1 September 2019.The appeal procedure for permits applied for before this date, is slightly different.
In the Walloon Region, the Code for Territorial Development provides that the decision regarding a permit is again made in most cases by the municipal council (in some exceptional cases by the regional authorized public planning officer). The applicant (or the municipal council in the case of a decision of the regional authorized public planning officer) can file an appeal against the decision with the Government of the Walloon Region. Against this decision, an appeal in (suspension and) annulation can be filed with the Council of State.
Last modified 22 Mar 2024
It is not necessary in any of the three regions (Flemish, Brussels Capital or Walloon) to enter into agreements with local or governmental authorities or agencies or with utility suppliers in order to facilitate the carrying out of a development.
It is possible to develop infrastructure projects as public-private partnerships (PPPs). In such cases, a private party, the project developer, contracts with an authority to jointly develop a project. In the Flemish region, this form of co-operation is encouraged and a special decree has been made to govern this: the Decree of 18 July 2003 regarding public private partnership. This decree contains the framework within which these partnerships are constructed.
In the Walloon and Brussels Capital Region, there is no special legislation regarding PPPs, but such partnerships or forms of co-operation are however used in these regions.
Last modified 22 Mar 2024
Building permits in the Flemish (now integrated environmental permits), Brussels Capital and Walloon Regions are not limited in time. There are very few exceptions. No renewal is necessary.
Last modified 22 Mar 2024
In the Flemish Region, an Enforcement Decree has been adopted by the Flemish Parliament that came into force on 1 March 2018. This decree contains a list of very specific enforcement measures. In summary, the decree provides for criminal sanctions against persons who violate the provisions of the decree (eg building without a permit or erected not in compliance with a permit and its conditions), and grants police officers as well as other ‘authorized’ officers the authority to carry out inspections. The decree further grants such persons standing before the Courts to apply for ‘restitution measures’, of which there are several. These measures include:
Furthermore, also administrative sanctions may be imposed after a motion of mistrial of the public prosecutor.
In the Brussels Capital Region, the Brussels Code regarding Public Planning of 9 April 2004, includes a chapter on ‘crimes and penalties’. This chapter contains very similar measures to those of the Flemish regime. In summary, the Brussels Code provides for criminal sanctions for violations of certain provisions of the code (eg building without a building permit or not respecting such permit and its conditions). The list of crimes is almost the same as the list in the Flemish Decree. The Brussels Code grants police officers and other authorized officers the authority to carry out inspections, and grants the officers the ability to apply to the Courts for a claim for ‘restitution measures’.
In the Walloon Region, the Code for Territorial Development includes a chapter on ‘violations and sanctions’. The list of violations and sanctions is similar as in the Flemish and Brussels regime. The police officers and the authorized officers are granted the same powers as in the Flanders and Brussels Capital Region. The ‘restitution measures’ they can seek are the same as those that can be sought in Flanders and in Brussels.
Last modified 22 Mar 2024
Does public law control the detailed design, appearance and method of construction of any new building?
Public law controls, in part, the design, appearance and method of construction of any new building. This is governed by planning instruments, at regional, provincial and local level. The applicable related regulations are numerous.
In the Flemish Region, the Flemish Public Planning Code states that “public planning policies”, (being detailed policies or requirements regarding, amongst other matters, design, appearance, and access to public utilities), can be made at the regional, provincial and municipal level. In principle, the most detailed policies are made at municipal level.
In the Brussels Capital Region, the Brussels Code regarding Public Planning of 9 April 2004 contains similar provisions. The Code states that “public planning policies” can be made at regional and municipal level. Therefore, in the Brussels Capital Region, there are no provincial public planning policies.
The regional policies take precedence over municipal policies. Also, the municipalities are legally obliged to amend their policies, if they are incompatible with the region’s policies.
In the Walloon Region, the Code for Territorial Development states that ‘public planning prescriptions’ can be made at regional and municipal level. Again, therefore there are no provincial public planning prescriptions in the Walloon Region. Under the Code for Territorial Development, only the ‘public planning prescriptions’ at regional level are compulsory (regional spatial plans and urban-planning guide to the exception of some provisions of said guide which are indicative), whereas the ‘public planning prescriptions’ at municipal level are indicative.
Last modified 22 Mar 2024