The Flemish decree on municipal roads was promulgated on 3 May 2019. The decree provides for harmonisation of the regulations with regard to all municipal roads.
Objective of the Flemish legislator
At present, municipal roads – small roads, local neighbourhood roads and slow roads, between which it is not always possible to make a clear distinction – are regulated by various legal instruments.
The new decree provides for the harmonisation of the existing fragmented regulations, in terms of the allocation of competences and in terms of procedures, as well as with regard to the creation of new roads and their modification, relocation or closure. A single legal status is provided for all roads which are operated by the municipality, regardless of the user (car or vulnerable road user) or the "origin" of the road (local neighbourhood road ("buurtweg"), following allotment, alignment, etc.).
This harmonisation is justified by the legislator's desire to safeguard and improve the structure, cohesion and accessibility of municipal roads. This should ensure that current and future needs for soft mobility are met. To this end, the decree explicitly states that the modification, relocation or closure of a municipal road is an exceptional measure, which must be adequately justified.
A single competent authority
The municipal council now has exclusive competence to decide on the construction, modification, relocation or closure of municipal roads. This puts an end to the decision-making power of the provincial executive regarding local neighbourhood roads ("buurtwegen").
In principle, the municipal council will decide through the approval of a municipal alignment plan ("rooilijnplan"), in which the location and width of the municipal roads will be laid down. The decree determines the form and content of these alignment plans. In addition, these plans can specify a building line, as was the case in the past. If a municipal road is being closed, the municipal council has to adopt a graphic closure plan. The provincial executive and the Department of Mobility and Public Works of the Flemish Region will advise on these plans.
If, however, the construction, modification, relocation or closure of a municipal road is included in a single permit application, the municipal council will have to decide on this within the framework of the permit procedure. For this to be done, the permit application needs to include a draft of the alignment plan or a graphic plan indicating the alignment to be removed.
Appeal against the decision of the municipal council
If an application for a single permit includes the construction, modification, relocation or closure of a municipal road, the municipal council must decide on this before a single permit can be issued. The decree provides that, in the context of the administrative appeal against the permit decision, a separate organised administrative appeal against the decision of the municipal council may also be lodged with the Flemish Government.
No acquisitive prescription through thirty years of non-use
As is already the case in the Walloon Region, the new Flemish decree also abandons the rule of acquisitive prescription of a municipal road through thirty years of non-use. Municipal roads can only lose their status as a public right of way following an explicit municipal council decision. However, in order to prompt the municipal council to make such a decision to close the road, the decree provides that anyone can submit a petition to the municipality pointing out that the road is no longer being used.
The establishment of a public right of way through thirty years of use also requires an explicit municipal council decision.
Compensation for depreciation or increase in value
The construction, modification, relocation or closure of a municipal road can lead to depreciation or an increase in the value of the land on which the municipal road is located.
The decree provides that the municipality must pay compensation to the owner of the land for any depreciation. Compensation for an increase in value is payable by the owner of the land and benefits the municipality.
The depreciation and increase in value are determined by a land surveyor appointed by the municipality
Entry into force
The decree will enter into force on 1 September 2019.