By means of an order dated 4 April 2019, the Brussels legislator partially postponed the entry into force of the reform of the Brussels Urban Planning Code (CoBAT) and the Order of 5 June 1997 on Environmental Permits (OEP), with minor amendments. While part of the reform has now entered into force with effect as of 20 April 2019, most aspects of the reform will not take full effect before 1 September 2019.
Context
By means of an order dated 30 November 2017, the Brussels legislator reformed the CoBAT and the OEP and amended certain related legislation; the order was published in the Belgian Official Gazette on 20 April 2018. The aim of the reform was, in particular, to simplify and rationalise the rules on urban planning and environmental permits. It was also an opportunity to implement the case law of the Council of State and the European directives into these legislative instruments. The entry into force of this voluminous order, which contains nearly 350 articles, was planned in two phases: the amendments related to planning, urban planning regulations and urban planning information ("Phase 1") came into force on 30 April 2018. The other provisions ("Phase 2") were scheduled to come into effect on 20 April 2019.
However, it transpired that the text of the order contained material errors and that corrections would be necessary before the deadline of 20 April 2019 in order to ensure legal certainty. Moreover, the updating of the computer system, which is essential for the proper management of the new procedures for permit and certificate applications, could not realistically be completed by 20 April 2019. In addition, it appeared that the administrations would need additional time to study the implementation decree adopted by the Government.
Consequently, while some of the amendments made by the order of 30 November 2017 were able to enter into force on 20 April 2019, the majority of the reform was partially postponed to 1 September 2019 by an order dated 4 April 2019. That order also contains amendments to the order of 30 November 2017 which will enter into force on 1 September 2019.
Amendments in force as of 20 April 2019
While most of the provisions of Phase 2 of the CoBAT and OEP reform will only come into force on 1 September 2019, three amendments have already entered into force as of 20 April 2019, as they did not require updating of procedures or adaptation of IT systems:
Updated list of projects subject to an impact report or impact study
Annex A of the CoBAT lists the types of project subject to an impact study. Some categories have been deleted, while others have had their thresholds or wording changed. Examples include the deletion of the word "construction" placed in front of certain works, to confirm that a project for the demolition of a structure subject to an impact study must also be the subject of such a study. Category 17 also now provides that a car park project only requires an impact study if it contains 400 spaces instead of 200 spaces. Category 21 is amended in order to specify that a commercial establishment is only required to make an impact study from 5,000 m² upwards (initially, this category covered commercial establishments of more than 4,000 m²).
Similar amendments have also been made to Annex B of the CoBAT, which lists the types of project subject to impact studies Among these changes, similarly to the changes made to Annex A, the word "construction" has been deleted from the wording of several categories. A new Category 32 has been inserted to make accommodation with a surface area in excess of 2,500 m² subject to an impact study. Category 31 is also amended to cover commercial establishments between 1,250 and 5,000 m², instead of commercial establishments in excess of 1,000 m².
Generalisation of the extension mechanism for environmental permits
Since 20 April 2019, article 62 of the OEP allows the extension of environmental permits at the end of each term, with the exception of environmental permits for temporary installations. The request for an extension must be made between one year and two years before the permit expires. An environmental permit that has expired may not be extended. When an applicant sends a reminder to the authority in the absence of a response to his permit application and the authority still does not respond, tacit extension of the permit can only occur if the extension application file was complete; this is in order to prevent an applicant from obtaining an extension without having updated the impact assessment of his classified facilities.
Modification of the list of Class I.A installations subject to environmental permits
Annex I to the order of 22 April 1999 specifies the list of Class I.A installations subject to environmental permits. Several categories have been deleted, such as Category 223 – "artificial groundwater recharge device the daily volume of which exceeds 20,000 m³" and Category 233 – "open-air parking for motorised vehicles with more than 200 spaces". Other categories have been amended, in particular to broaden or clarify their scope, such as Category 222, which now specifies that, for a flow rate in excess of 20,000 m³ per day, it concerns not only groundwater extractions but also any artificial groundwater recharge device. These amendments also increase certain thresholds, in particular those of Category 224, which previously concerned only garages and covered areas where motorised vehicles are parked for more than 200 vehicles or trailers: the category now includes all covered and/or uncovered parking lots, located off the public road, for motorised vehicles (motorcycles, cars, vans, trucks, buses, etc.) or trailers with more than 400 spaces.
Amendments coming into force on 1 September 2019
The other amendments to the CoBAT and the OEP, which will come into force on 1 September 2019, include the following:
Examination of applications for town planning and environmental permits
The reform aims in particular to introduce the mixed permit, i.e. a single permit incorporating the urban planning permit and the environmental permit required for a mixed project. To this end, the order of 30 November 2017 establishes similar provisions in the CoBAT and the OEP to ensure consistency between the two procedures. These amendments include the introduction of strict deadlines for the examination of an application for a planning permit: the legislator decided to establish strict deadlines in a manner similar to the procedure applicable to environmental permits. If these deadlines are not respected, the authority has implicitly rejected the application.
Integration of the environmental assessment into the permit-issuing period
A permit application for projects which require an environmental impact study to be drawn up (projects included in Annex B of the Brussels Urban Planning Code) can be submitted with a preparatory note concerning the environmental impact study. The environmental impact study must subsequently be drawn up within a period of six months (which may be prolonged in exceptional circumstances). It is no longer necessary for the general scope of the environmental impact study to be subject to a public inquiry. Once the steering committee has decided that the study is complete, the study is ended and the permit application follows its normal course, in which both the environmental impact study and the permit application are subject to the specific rules concerning publicity (public inquiry and consideration by the consultative committee) and the advice of the advisory bodies. The permit decision must be notified within 450 days after the notification of receipt of the permit application.
Architectural heritage
The reform institutionalises a new actor, the "officer in charge of heritage". He/she will be responsible for issuing an urban planning permit in cases where the project relates to all or part of a property which is, even partially, registered on the safeguarding list or as a listed building or is in the process of being registered or listed, whether or not the works affect the parts of this property which are registered or listed or which are the subject of a procedure for registration or listing.
Urban planning offences
Among other measures, the legislator has created an accelerated regularisation permit procedure to regularise irregular situations created before 1 January 2000 in accordance with the legislation at the time or with current legislation. In order to benefit from this accelerated procedure, it is required that the work was not subject to an impact assessment then or now and that there is a favourable prior opinion from the Fire Brigade and Emergency Medical Service.
Bart Martel
bart.martel@eubelius.com
Marie Ruys
marie.ruys@eubelius.com
