The unique environmental permit has entered into force

The Flemish permit landscape has been changing for quite some time. The Flemish government is making every effort to make the permit granting policy easier by introducing the “Environmental Permit” which integrates the environmental and the urban development permit and all the permit obligations that are applicable, without changing the existing rules.

The development of these rules has not been easy (difficult and slow), on the one hand by introducing a series of implementing and modification decisions and on the other hand numerous protracted problems regarding the development of the digitalization of the applications.

At last the hour has come that the environmental permit is turned into reality.

1.  Key date starting on 23 February 2017

The decree on the environmental permit (hereinafter "Environmental Permit Decree") was approved by the Flemish Parliament on the 23th of April 2014 and entered into force together with the modification decision of 27 November 2015 on 23th of February 2017. In the meanwhile 12 diverse legislative documents were introduced which amended the decree.

This means that the projects that were notified before 23 February 2017, have to follow the previous existing procedure, while the applications as from 23 February 2017 have to comply with the procedure of the Environmental Permit Decree. Some Flemish municipalities have already implemented the new procedure but due to the laborious digitalization, we are not art of the woods yet. 

It is also important to know that:

• the Flemish Spatial Planning Code (FSPC) continues to exist, however without the section regarding the permits, which is absorbed by the Environmental Permit Decree;
  
• the environmental decree will disappear;
• Vlarem I disapears, the classification list is transferred to Vlarem II;
• Vlarem II and III continue to exist.

You will find the most important elements of the environmental permit below.

2.  Permit and notification obligations

Not a single project that is subjected to a permit or a notification may be carried out, exploited, parcelled out, modified while subjected to permit obligations, without a preceding notification act or an environmental permit.

The environmental permit also applies as a notification act for the part of the project that is subjected to a notification obligation.

3.  Scope of application of the Environmental Permit Decree 

The Environmental Permit Decree applies to projects that are subjected to:

• permit obligation for executing urban development operations as stated in art. 4.2.1 of the Flemish Spatial Planning Code (FSPC);
• permit obligation for dividing land into lots (parcelling out) as stated in art. 4.2.15 of the FSPC;
• permit obligation of exploitation of activities of the first or second class as stipulated in art. 5.2.1 of the Decree on the General Principles of Environmental Policy  (these are installations or activities which imply bigger risks or nuisance);
• permit obligation for retail activities subjected to permit obligations as stipulated in art. 11 of the Decree on Retail Establishments of 15 July 2016 (“social economic permit”);
  Attention! the environmental permit replaces the social economic permit as from 1 january 2018 ; (read more about this matter by clicking here) ;
• notification obligation for executing urban development operations as stated in art. 4.2.2 FSPC.
• permit obligation of exploitation of activities of the third class as stipulated in art. 5.2.1 of the Decree on the General Principles of Environmental Policy  (these are installations or activities which imply the least risks or nuisance).

For projects covered by European regulations, the provisions of the Environmental Decree are only supplementary, if appropriate.

4.  Digitalization of the environmental permit file

The intention is that the environmental permit file is lodged digitally.

The municipalities have used the opportunity to request a delay from the Flemish Minister of Environment regarding the digital treatment of the environmental permit. The date of the delay was set at 1 June 2017 because protracted software problems obstructed the harmonization of local, provincial and regional software. However, the delay does not affect the stipulations that entered into force on 23 February 2017.

Moreover, the Flemish Government has recently decided that the current Environmental Counter (Desk) is applicable until 1 January 2018.

Flemish Government has recently decided that the current Environmental Counter (Desk) is applicable until 1 January 2018

5.  The duration of the environmental permit

The Environmental permit applies for an indefinite period of time.

As a result, the cost, which can easily amount to EUR 4,000.00, for compiling and submitting a permit application, will no longer have to be paid.

The permit holder or exploiter no longer has to take the finiteness of the permit into account when he wishes to make investments in his company.

The Environmental Permit Decree provides an exhaustive list of the cases in which the permit will be granted on a temporary basis. Among these cases are:

• when the permit holder requests it himself;
• when it comes to temporary installations or activities with a temporary character by their nature;
• when it comes to constructions with a temporary character by their nature;
• when the project concerns groundwater winning or extraction;
• if a probationary environmental permit (minimum 6 months and maximum 2 years) is necessary in order to examine if the exploitation after the probationary period is acceptable for humans and the environment;
• the view on re-localization when the project is not compatible with the areal destination or when a temporary permit can possibly be granted in case the project is conflicting with a urban development prescription;
• for modifications of exploitation of classified installations or activities which initially have obtained a permit with a fixed duration;
• for retail activity projects which have a permit for a period that does not exceed 12 months in a existing permitted or mainly permitted building or in temporary permitted constructions or constructions which are exempted from a permit.

The decree provides for a transitional arrangement stating that environmental permits granted as from 10 September 2002 for a period of 20 years, are deemed to have been granted for an indefinite period of time.

6.  Limitation of procedures

The Environmental Permit Decree reduces the number of permit granting procedures to two:

• an ordinary procedure, in which a public inquiry is conducted;
• a simplified procedure (i.e. without a public inquiry).

The simplified procedure is not applicable on projects for which the application must be filed with the following attachments:

• an environmental impact report; or
• a safety report; or
• a suitable assessment in case an activity subjected to a permit can cause a significant deterioration of the natural features of a special protected zone.

The decree also provides for a notification procedure for projects that are subjected to a notification obligation.

The appeal is the last administrative instance:

• the provincial deputation is competent for decisions of the mayor and the aldermen in first instance;
• the Flemish Government for the decisions of the provincial deputation in first administrative instance.

The decisions regarding an environmental permit, taken in last administrative instance, or the formal recording of a notification, can be appealed with the Council for Permit Disputes.

7.  Coordinated permit

The Environmental Permit Decree implements the coordinated permit for classified establishments or activities. As a consequence, the applicant of this permit will have one unique permit that clarifies the present state of its permit situation for the exploitation of the classified establishment or activity.

An actualisation is needed in case of a transfer of the environmental permit, termination or extinction of the exploitation, change of the exploitation of the classified establishment or activity.

8. Prior consultation, administrative loop and qualitative permit granting

The Environmental Permit Decree makes an optional prior consultation on the proposed project between the initiator and the authority concerned possible before the start of the formal permit granting procedure. This is especially important for the feasibility of the project. The initiator will be able to adjust the terms and conditions of the permit according to the regulations in force.

An administrative loop is also implemented.  The permit applicant will be allowed to still make changes to the permit application subject to the agreement of the competent permit granting authority after the public inquiry or during administrative appeal proceedings. If a new public inquiry takes place, the decision term will be automatically renewed. In that way the administrative loop avoids a new application having to be submitted.

In addition, environmental permit granting committees will be set up to give advice on complex and voluminous projects through respectively the board of the major and aldermen, provincial channels or the Flemish government.

9.  Evaluations

The introduction of a permanent environmental permit should not result in prejudice to the protection of man and environment. 

As compensation for the abolition of the renewal environmental permit general and specific evaluations of classified establishments or activities are implemented, in order to verify whether the environmental conditions after a certain period of time need to be adjusted in order to limit certain risks and consequences of the exploitation to an acceptable level.

10.  Suspension or termination of the environmental permit

Full or partial suspension or termination of the environmental permit is possible if the general, sectorial or specific environmental conditions are not complied with.

11.  The Environmental Permit Decree is still in evolution…

The Environmental Permit Decree will undergo a series of changes and adjustments due to the “Codextrain” (Preliminary draft decree including a variety of provisions regarding spatial planning, environment and surroundings), which was ultimately approved by the Flemish Government on 24 March 2017.

The following modifications are, amongst others, implemented:

• the introduction of a penalty system in case of non-compliance with decision term for an application of an environmental permit or in case of an environment notice (due terms whether or not associated with fines);
• the integration of a permit for a vegetation modification into the procedure for the granting of an environmental permit;
• an extension of the expiration date of the environmental permit in case of force majeure;
• the introduction of a provincial environmental public servant who can take over administrative tasks of political governments that are competent to evaluate final applications;
• The restriction of access to the appeal procedure against granting decisions only to persons who made objections during the public inquiry;
• adjustment of the consequences of suspension and annulment judgments on granted exploitations of classified establishments and activities;
• the extension of the competence of the regional environmental public servant to certain decisions in appeal;
• technical adjustments and alignment of the Environmental Permit Decree.

12.  Conclusion

The unique environmental permit is a relief for many companies and their associated investments.

By implementing one procedure, one advice and one decision for obtaining a building and environmental permit, more transparency and simplicity will be created for the parties involved, and the permit applicant will mainly be offered more legal certainty.

The new system of the environmental permit, nevertheless, causes a major shift in the size and nature of the tasks of the public authorities concerned at different levels. This means that the administrative organisation and capacity are a crucial factor for the success of the whole operation.