Environmental law space
The office has built up extensive expertise in the complex and rapidly changing regulations regarding spatial planning and urban planning.
The new environmental permit came into full force on 1 January 2018 for all applications for urban planning activities, the parcelling of land and the exploitation of classified facilities.
Spatial planning and environmental protection are framed under the umbrella of “environmental law”. There is thus an integration of the environmental permit and urban planning permit procedures.
As a result, we no longer speak of a building permit, an environmental permit or a subdivision permit, but of an environmental permit for urban development activities, an environmental permit for the operation of classified establishments or activities and an environmental permit for the parcelling of land.
Specifically for building, an environmental permit for urban planning activities must be applied for, formerly known as a building permit or urban planning permit.
An environmental permit is also required for allotment of land, formerly known as an allotment permit.
Changes to real estate that is outside the zone also require an environmental permit. And immovable property is zone-unrelated if the immovable property or its use is not compatible with the spatial destination of the land (see topic planning).
The Environmental Permit Decree of 25 April 2014 is a procedural decree that integrates the regulations regarding the environmental permit and the urban planning permit. In addition, there is also the integration of the socio-economic permit and the permit for vegetation modification. The substantive rules of the Flemish Spatial Planning Codex, the Decree on General Provisions for Environmental Policy and the respective implementing decrees remain applicable.
What is new is that the environmental permit for the operation of classified establishments or activities, applies in principle for an indefinite period (permanent permit) and no longer for a maximum of 20 years. More than in the past, flanking/periodic evaluations will follow for permanent permits.
The administrative loop is also new and should help resolve/repair procedural errors. Permits are granted, among other things, on the basis of consultation, cf. Project meetings.
The office provides support for the three basic pillars of the regulations, being:
the environmental permit
Environmental permits, spatial planning, buildings and companies outside the zone, planning damage and planning benefits in planning repurposing are part of the expertise of the office.
The office's services with regard to spatial planning and urban planning can be summarized as follows:
legal assistance with applications for environmental permits and subdivision permits
support in drawing up objections during a public inquiry
conduct administrative appeal procedures for the deputation, the Environment Department
if necessary, a suspension and annulment appeal will be lodged before the Council for Permit Disputes or the Council of State against allotment and urban development permits, regional plan amendments, BPAs, RUPs, protection decrees, etc.
Also with regard to urban planning enforcement, the firm assists the client in conducting proceedings before the Courts of First Instance and Courts of Appeal regarding the remediation and sanctioning of urban planning crimes
The definition of spatial planning reads: "The systematic preparation of policy-making and executive actions, aimed at consciously intervening in the spatial order and at organizing these interventions."
The government establishes regional plans for the various zoning areas. The existing plans regulate the use of your land. The determination used to be made on the basis of the Town Planning Act of 22 March 1962. There is now a transitional phase from regional plans to spatial structure plans and spatial implementation plans. There is a hierarchy between the different plans. The urban planning regulations associated with each spatial implementation plan determine what is possible within a specific area or for a specific property.
In order to find out what is possible with a particular property, it is necessary to take into account the currently established plans, and thus to know the most recent destination.
Regional plans, BPAs, RUPs can also be changed. This can affect the market value and yield of the area. Changing plans is accompanied by a public inquiry. An objection can be lodged during this public inquiry. If the objections are not followed, a suspension and annulment appeal can be lodged before the Council for Permit Disputes or the Council of State against changes to a regional plan, BPAs, RUPs, etc.
Plan damage and plan benefits
The office assists owners in safeguarding their rights in the event of planning damage or planning benefits procedures.
After all, in certain circumstances, the destination of a plot can be changed by the government, for example by means of a spatial implementation plan or, in the past, a special construction plan, for example: a plot of agricultural land that is being redeveloped into a plot suitable for business. A change of use can result in added value being created on a property. The owner of this upgraded plot may have to pay taxes on this added value, the so-called plan benefits. However, the reverse situation can also occur. Development opportunities may disappear or be limited by the change. In certain cases, there may be compensation for planning damage.
Environmental law has acquired a lasting influence on various aspects of entrepreneurship. Different air, water and soil standards often have a major impact on the activity of industrial and service companies and on individuals.
The office is active in the following areas of environmental law:
Soil remediation and earthmoving (see topic Soil remediation and earthmoving)
Forest management (see topic nature conservation and forest)
Integral water policy
Nature conservation (see topic nature conservation and forest)
Fertilizer legislation (see topic agricultural law)
The office's advice in the context of environmental permits (Vlarem legislation) consists of:
legal guidance to companies, engineering offices and local authorities with environmental permit applications
support in drawing up objections during the public inquiry
assistance in drawing up administrative appeal procedures for the deputation or minister (editor's notice of appeal, supervision of the hearing of the provincial and/or regional environmental permit committee)
conducting proceedings before the Council of State and Courts of First Instance
legal support to the operator in enforcement procedures by the environmental inspectorate, such as closure of the establishment, cancellation or suspension of an environmental permit, and also contests these measures.
Enforcement of environmental permit violations: environmental crime and construction crime
The Environmental Enforcement Decree, the Immovable Heritage Decree and the Flemish Spatial Planning Codex contain numerous enforcement rules and measures.
The office provides legal support for the operator in enforcement procedures by the environmental inspectorate, such as closure of the establishment, cancellation or suspension of environmental permits, and also challenges these measures.
Even when environmental or construction crimes are committed, the office will advise you on the steps you can take.
Noise and odor nuisance
In the event of nuisance related to environmental nuisance, odor nuisance, mobility nuisance, dust nuisance, noise nuisance, etc., communication between government, companies and the environment is often of paramount importance to prevent nuisance problems as much as possible. The office assists governments, companies and individuals to enter into consultations. If necessary, legal action will have to be taken to prevent the nuisance, limit it to an acceptable minimum or end it too late if this proves to be the only way out.
Nature Conservation and Forest
As an entrepreneur or private person, you often have to deal with the various regulations relating to the protection of nature and of animal and plant species.
The office is familiar with procedures regarding European nature conservation law (including the Birds Directive and the Habitats Directive), nature conservation law and the Forest Decree.
Roads: waterway and roads
The presence of waterways often raises questions. Who should maintain the waterways: the government, the ashore? Who is responsible in case of flooding? The status of the waterway is important here.
What are the building options near a waterway? Legislation pays a lot of attention to harmonization with other policy areas: for example, the water test must always be carried out by the competent authority that must issue the environmental permit for the construction project, otherwise the environmental permit is illegal, including the link water management. and spatial zoning plans, the rainwater ordinance, etc. are included in the assessment.
Numerous questions also arise with regard to 'neighborhood roads'. The status of a road in particular is often the subject of discussion. The Atlas of Neighborhood Roads is merely indicative. It is the legal status of the road that is shown that will prevail in discussions.
Neighborhood roads can also be lifted and changed, the new legislation on municipal roads came into force September 1, 2019, and is therefore recent.
Soil remediation and soil pollution
In the event of an imminent remediation obligation, the office assists the owners, users and operators of contaminated land with their applications to obtain the status of innocent owner/possessor, ie the exemption from the remediation obligation.
supervision of administrative appeal procedures provided for in the Soil Decree and Vlarebo
if the OVAM's decision is unfavourable, the office will assist with the administrative appeal lodged with the Flemish government
conducting proceedings before the Council of State
advice and guidance in earthmoving procedures
legal guidance in remediation procedures, both in the phase of drawing up the soil investigations (OBO and BBO) and the soil remediation project (BSP), and in the phase of the effective remediation
guidance in enforcement procedures by the administrative supervisors
assistance for violations of soil, earthmoving, waste and materials legislation (Vlarebo, Vlarea and Vlarema)
support for claims for damages caused by pollution or contamination from neighboring lands
Soil contamination can have serious financial consequences. Good and timely guidance is therefore essential in this respect.
Heritage: monuments and landscapes
The office advises the client and provides assistance in objection procedures for provisional and final protection of his property as monuments, landscapes, townscapes and cityscapes.The office also provides support in proceedings before the Council of State when its property is protected by a protection order .
In the event of a threat of expropriation, the office conducts negotiations with the expropriating authority or with the purchasing committee (amicable acquisition). A fair and equitable expropriation compensation or trying to prevent the expropriation is central to this.
In case of unlawful expropriation, if the basic constitutional conditions of public benefit, necessity, proportionality are thus not met, the firm will assist the client in drawing up objections during the public inquiry and will conduct the procedure to challenge the expropriation decision before the Council of State or the judicial expropriation procedure before the Justice of the Peace or the Court of First Instance.
The office works together with surveyors experts so that a total package of services can be offered.