In a decision issued on 6 October 2016, the Constitutional Court ruled on three applications for annulment directed against the Flemish Single Permit Decree ("Omgevingsvergunningsdecreet"). The Court only annulled one article of this elaborate Decree. Thus, the most important innovations of the Single Permit Decree withstood constitutional challenge. As a result, an important hurdle was cleared for the entry into force of the Single Permit Decree on 23 February 2017. There are also plans for a number of modifications to the Single Permit Decree which will also have an impact.
The Flemish Single Permit Decree aims to create a procedural framework for an integrated permit, enabling combined evaluation of both urban planning aspects and environmental aspects of a planned project following an integrated permit procedure. We have previously discussed the basics of this Decree, which will enter into force on 23 February 2017.
The most important principles of the single permit still stand
A number of environmental associations and private individuals challenged the new Single Permit Decree in the Constitutional Court. They contested multiple aspects of principle in the Decree, including:
- the perpetual nature of the single permit;
- tacit positive advice during the permit-granting procedure;
- the arrangements for the right to be heard in first and final administrative instance;
- the possibility of tacit rejection of the administrative appeal;
- the obligation to carry out an environmental impact report ("project-MER") in cases of renewal of single permits of limited duration and conversion of an environmental permit.
The Constitutional Court has entirely rejected the criticism of the claimants with regard to these points. Hence, the principles of the Single Permit Decree still stand.
With regard to the perpetual nature of the single permit in particular, the Court rules that this aspect passes the test of the standstill principle, because the perpetual nature of the permit is not unconditional. The Court holds that the regional legislator has provided for "accompanying measures", such as general and specific evaluation of structures or activities, and opportunities for the public concerned or an advisory body to make observations at the end of each exploitation period of 20 years. The Court concludes that these specific guarantees ensure there is no significant decline in the level of protection of the environment.
An appropriate assessment is required in cases of renewal of single permits of limited duration and conversion of an environmental permit
The Constitutional Court only took issue with a very specific part of the Single Permit Decree (article 36ter §3, third paragraph of the Nature Conservation Decree, as inserted by article 226 of the Single Permit Decree). The contested regulation prescribed that for a mere renewal of the single permit, or the conversion of an existing environmental permit granted as from 10 September 2002, in principle an "appropriate assessment" did not need to be carried out, unless the mere renewal or conversion involved activities requiring physical intervention in the environment.
According to the Constitutional Court, article 226 of the Single Permit Decree violates the law of the European Union, specifically Article 6 of the Habitats Directive. Following a recent decision of the Court of Justice of the European Union dated 14 January 2016, the Constitutional Court concluded that the requirements of the Habitats Directive were not met if an appropriate assessment was only required when the permit involved activities leading to physical intervention in the environment. According to the Constitutional Court, an appropriate assessment is also required for the renewal of a single permit (or part of it) when the project at hand (in itself or in combination with other plans or projects) could have significant consequences for a special protection zone.
Specifically with regard to the conversion of an existing environmental permit into a single permit, the Constitutional Court also notes that it is not reasonably justified to take 10 September 2002 as the decisive date from when an environmental permit is considered as granted for an indeterminate period, without providing for any form of "actualisation" of the obligation of an appropriate assessment. As a result, for the conversion of environmental permits granted after 10 September 2002, too, the need for an actualisation of the obligation of an appropriate assessment will have to be considered.
It should be kept in mind that the position of the Constitutional Court only applies to the obligation to carry out an appropriate assessment. Concerning the obligation to carry out an environmental impact report, the Constitutional Court has clearly decided that the mere renewal of a single permit or the conversion of an environmental permit into a single permit does not trigger the obligation to carry out an environmental impact assessment.
Changes to the Single Permit Decree
For these reasons, the decision of the Constitutional Court does not impact the timing for the Single Permit Decree to enter into force. This will happen on 23 February 2017.
It does appear, however, that the Single Permit Decree will undergo some modifications before that date. A preliminary draft decree, currently submitted to the Council of State for advice, aims to implement a number of modifications before the Decree enters into force.
An important modification concerns the arrangement of the time limits for permit decisions in first and final administrative instance, even though these have passed scrutiny by the Constitutional Court. This system would take the place of the tacit refusal of the administrative appeal, as originally organised in the Single Permit Decree.
The regional legislator also intends to provide financial sanctions when the responsible authorities exceed the time limits for taking permit decisions in first and final administrative instance.
If the board of the Mayor and aldermen, or the provincial executive in first administrative instance, declines to decide on a permit application within the time limit, the applicant can claim lump-sum compensation of EUR 2,500 or EUR 5,000 (depending on whether the application is being handled according to the simplified procedure or the normal procedure).
If the provincial executive in final administrative instance, or the regional environmental official or the Flemish government in first or final administrative instance, declines to decide within the time limit, they will be required to pay the permit applicant or the applicant on appeal a penalty of EUR 500 per day.
This arrangement has an important effect on the situation of a permit applicant, because he is required to demand the penalty payment from the competent authority within 90 days of the lapse of the time limit. If he fails to do so, the applicant or applicant on appeal will be considered to have renounced his application or appeal and his right to the penalty payment! Permit applicants are therefore well advised to keep an eye on the time limits, and, if necessary, to claim penalty payments in time, if they still wish to obtain a permit decision.