REALWorld Law

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

In Belgium, the regions are authorized to regulate zoning and planning. The regions are the:

• Flemish Region
• Walloon Region
• Brussels Capital Region

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 Flemish Public Planning Code of 15 May 2009 and the Decree on Integrated Environmental Permits of 25 April 2014(Flemish Region);
• The Code for Territorial Development of 20 July 2016 (Walloon Region);

The Brussels Code regarding Public Planning of 9 April 2004 (Brussels Capital Region).

Last modified 22 Mar 2024

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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

Is there a right of appeal against a relevant authority's decision in respect of an application for permission for development or the carrying on of a designated use?

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:

• demolition of a construction;
• adaptation or amendment of the works; and
• the payment of a sum corresponding to the illegal monetary advantage generated by the crime.

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