Environmental permit

Part 1 The application

1.With the arrival of the environmental permit, the urban development permit, the environment permit and the subdivision permit will disappear. These are all integrated into a single license, which was introduced by decree of 25 April 2014. It entered into force for all levels of government from 1.6.2017 at the latest.

Scope

2. The environmental permit must be applied for a project requiring a permit. A project is then understood to mean a whole of urban development activities, the exploitation of classified establishments, or the subdivision of land.

When such a project is subject to a permit is not determined by the decree itself, but by the Flemish Codex Spatial Planning (FCSP) or the Decree General Provisions Environmental Policy (GGPEP).

3. The environmental permit therefore applies both to projects that only comprise urban development activities, as to projects that only relate to the exploitation of a classified establishment (project for which an environmental permit is / was required), as well as to projects that include both.

There is now a legal obligation to apply for projects that include both urban development activities and activities relating to the exploitation of a classified establishment in a single environmental permit file. It must concern activities that are inextricably linked. For example, for the construction of a stable for animals, the construction of the building and the exploitation of the stable are inextricably linked.

Competent authorities

4. The new application procedure includes elements of both the application for an urban development permit and an environment permit. A project meeting can be requested prior to a permit application. This meeting aims at harmonizing the procedures between the authorities involved and discussing any project adjustments.

5. A first step in directing the application is to determine which government is competent to issue the permit.

There are three options:

the Flemish Government or the regional environmental officer;
the Deputation;
the College of Mayor and Aldermen.

6. The Flemish Government will decide on projects that are included in an implementation decree, the so-called Flemish projects, or projects that exclusively comprise mobile or mobile facilities / activities and that run over more than one province.

7. The Deputation is competent for provincial projects, which are further specified in an implementation decree, or projects that exclusively comprise mobile or movable facilities / activities and that involve more than one municipality. It is also responsible for projects involving a class 1 establishment or activity.

8. The Board of Burgomaster and Aldermen is competent for the remaining applications.

Applicable procedure - Simplified procedure

9. After determining the competent authority, it should be determined which procedure is to be followed. There are two types of procedure: the simplified procedure and the normal procedure.

10. The simplified procedure applies to:

a limited change to a licensed project;
a project that only comprises temporary facilities and / or activities;
the exploitation of a classified establishment / activity that has become subject to a permit requirement by supplementing or changing the classification list;
the types of projects indicated by the Flemish government.

The application must be sent by secure shipment, but the file must also be submitted to the competent authority.

11. The file is then examined for admissibility and completeness. This investigation must take place within 30 days from the submission of the application. If the file is incomplete, it can still be regularized. The period of 30 days only starts to run from the date of receipt of the missing documents.

Note: the possibility of regularization is completely left to the discretion of the competent authority. The latter is therefore not obliged to give the applicant the opportunity to provide the missing documents. This can give rise to arbitrariness.

The decision period for the competent authority (60 days) starts from the 30th day after the date of submission of the application.

12. If the file is considered admissible and complete, the application will be examined in terms of content. There will be no public inquiry in a simplified procedure. Advice may be required from advisory bodies. It is the intention that these advices are delivered very quickly.

13. There is a possibility to change the subject of the application and the plan if three conditions are met:

the changes do not affect the protection of humans, the environment or spatial planning;
the changes are in accordance with the recommendations;
the changes do not require the organization of a public inquiry.

14. When receiving the permit, one must wait 35 days before actually using the permit. If an appeal is lodged, this has a suspensive effect. In some cases, it will be possible to make immediate use of the permit: if an administrative appeal is no longer possible (eg decision of the Flemish Government), and when the administrative appeal does not have a suspensive effect (eg license for exploitation after a trial period).

Applicable procedure - Ordinary procedure

15. If the simplified procedure cannot be applied, and in any case whenever a public inquiry is required, the normal procedure should be used.

The rules for submitting the application and for the examination of admissibility and completeness are identical to those of the simplified procedure. In the normal procedure, a project MER, an environmental safety report (ESR) and / or an appropriate assessment may have to be added to the application.

Before a decision will be taken, a public inquiry should be organized. Any natural or legal person can submit their views, comments or objections. Various advisory bodies will also have to provide advice in the normal procedure.

16. It is also possible to change the application in the normal procedure when

the changes do not affect the protection of humans, the environment or spatial planning;
the changes are in accordance with the recommendations;
the changes apparently do not entail any violation of the rights of third parties.

If these conditions are not met, the competent authority can decide to organize a new public inquiry, which will automatically extend the processing time.

17. This period can also be extended when the permit file includes road works over which the municipal council has decision-making power, as well as when the administrative loop would be used. The latter means that if the competent authority establishes that an irregularity committed can lead to annulment of the decision, the authority can decide to rectify the irregularity. It can then organize a new public inquiry or obtain the required advice.

18. The "normal" handling period is 105 days if no advice from the provincial or regional environmental permit committee is required, and 120 days if this is the case. This period is automatically extended by 60 days in the above cases. As with the simplified procedure, the decision period for the competent authority starts from the 30th day after the date of submission of the application.

PART 2. The appeal procedure

1. The application procedure for the new environmental permit was already discussed in an earlier contribution.

This contribution will explain the permit procedure in final administrative instance. An administrative appeal is always possible against a decision about an environmental permit, unless the Flemish Government is the licensing authority.

Competent authorities

2. There are two competent authorities to judge an administrative appeal: the Flemish Government and the deputation.

The Flemish Government will judge on appeals against decisions of the deputation in first administrative instance. The deputation will then rule on appeals against decisions of the mayor and aldermen in first administrative instance.

Professional submitters

3. The following persons or bodies can appeal:

the applicant;
the public concerned (this concept is broadly defined);
the lead officer of the advisory bodies if advice was requested;
the council of mayor and aldermen if was asked for advice;
the senior official of the Department of Environment, Nature and Energy;
the leading official of the Department of Spatial Planning, Housing Policy and Immovable Heritage.

Appeal term

4. Under penalty of inadmissibility, the appeal must be lodged within 30 calendar days.

This period starts from the day after the date of service on the persons or authorities who will be served with the decision, the day after the expiry of the decision period in the case of an implied refusal, or the day after the first day of display of the contested decision.

Procedure

5. Under penalty of inadmissibility, the appeal must be filed by secure shipment and a copy of the appeal must at the same time be sent to the permit applicant, the deputation (if they have made the decision), and the College of Mayor and Aldermen.

Anyone who submits an appeal must pay a file tax of EUR 100.00, unless it concerns an appeal against a tacit refusal.

After receipt of the appeal, the admissibility and completeness will be examined. The competent authority must make a decision within 30 days. If this period is exceeded, this means that the processing period for the competent authority starts to run.

It is possible, just as in the first administrative instance, to regularize the file. The period for regularization is 14 days. The competent authority may request that missing documents be added.

An appeal that is found incomplete or inadmissible will automatically result in the termination of the appeal procedure. The decision is communicated to the petitioner, the permit applicant, the deputation and the mayor and aldermen.

6. If the appeal is admissible and complete, or if the period of 30 days expires without a decision on this, the content of the file will be examined.

Advice will be obtained from various advisory bodies. If the Board of Mayor and Aldermen is not the applicant, the Board will also have to give advice. It is also possible that the provincial or regional environmental permit commission must provide integrated advice.

As in the first administrative instance, there is a possibility to change the license application, with or without new public inquiry.

7. The period within which the competent authority must take a decision differs depending on whether the application was submitted in the simplified procedure or in the ordinary procedure. The period begins to run from the day after the date of the last declaration of admissibility and completeness, or from the thirtieth day after the date of the submission of the last administrative appeal.

If the simplified procedure was applied, a binding decision period of 60 days applies. If the normal procedure is applied, the decision period is 120 days.

These terms can be extended once by 30 days if a (second) public inquiry is organized, if the administrative loop is used, or if the application includes road works on which the municipal council is convened by the provincial governor in the course of the procedure.

If there is no timely decision, the appeal will be deemed to have been rejected

Appeal against decisions taken in the last administrative instance - Council for Permit Disputes

8. Express or tacit decisions regarding an environmental permit, taken in the last administrative instance, can only be taken by the Council for Permit Disputes.

This appeal can be lodged by the same persons who could also lodge an administrative appeal against a decision taken at first instance, more specifically:

the applicant;
the public concerned (this concept is broadly defined);
the lead officer of the advisory bodies if advice was requested;
the council of mayor and aldermen if was asked for advice;
the senior official of the Department of Environment, Nature and Energy;
the leading official of the Department of Spatial Planning, Housing Policy and Immovable Heritage.

The person who has failed to challenge the licensing decision through an administrative appeal can no longer apply to the License Disputes Board.

9. The procedure before the Council for Permit Disputes must, under penalty of inadmissibility, be instituted within a period of 45 days starting on the day after the date of service, or the day after the first day of the display of the decision.