Towards a quicker and more efficient Council for Permit Disputes?

News On the 1st of September 2012 came into force a Decree amending several provisions of the Flemish Codex on Zoning Law in regard to the Council for Permit Disputes (« Raad van Vergunningsbetwistingen »).

The Flemish government has given further execution to this Decree in a Decision regarding the procedure for the Council for Permit Disputes.

With the coming into force of this legislation, there have been a few changes and innovations regarding the process for the Council for Permit Disputes.

First, let us clarify the Council for Permit Disputes. The Council for Permit Disputes is an independent Flemish administrative jurisdictional body. This Council is open for any appeal against permit decisions concerning the delivery or the refusal of a building permit or a land development permit, and validation or registration decisions.

The Council for Permit Disputes was established in 2009. The ambition to set up such Council was to have a specialized administrative court that, because of its specialization, would be able to take quick decisions without affecting the quality of the aimed dispute resolution. The starting point of this Decree is unfortunately the statement that after two years the ambition was not always achieved. With the aforementioned legal initiatives, the Flemish Government wants to meet that unachieved ambition and ensure a quicker and more efficient Council for Permit Disputes.

You will find below a summary of the most important changes and innovations that have been made regarding the procedure for the Council for Permit Disputes. These changes and innovations are applicable to the applications that were filed as from the 1st of September 2012. For applications filed until the 31st of August 2012, the former legislation still applies.

A "simplified procedure" is a first procedural innovation. After the registration of the application, the Council will examine whether the appeal could qualify for the simplified procedure. The appeals envisaged are those wherefrom a simple reading of the application or the supporting documents can be concluded that such appeal is without purpose or clearly not admissible or that the Council is clearly not competent. The Council pronounces its decision within 30 days. The appeal procedure is completed, when the Council decides that the appeal was without purpose or clearly not admissible or that the Council is clearly not competent.

The abolishment of the permit decision as the sole purpose of the procedure must give way for decisions that make a final resolution of the dispute. For this reason the Council has received new competences to enable it to judge an appeal through a so-called “administrative loop” or through mediation.

The "administrative loop" means that the Council grants an opportunity to the administrative authority granting the permit to remediate itself the irregularities of the decisions, pending the procedure, and at least if they can be remediated without coming to an abolishment. It is the Council that has to take the initiative. If the Council decides to apply the administrative loop, it should render an intermediate judgment in which is mentioned in what way and within which period the irregularity has to be remediated. With this procedure the government aims to resolve the problem of the abolishment decisions, which only resolves the problem or the dispute partially. Indeed, as part of the execution of an abolishment decision, the administrative authority granting permits will be required to remediate the cause of the abolishment before taking a new decision. Other irregularities that the Council has not examined can therefore be committed again. In which case that new decision would lead, on its turn again, to a new abolishment request with the Council, and be abolished again,…

"Mediation": the parties have now also the possibility to request for mediation. They can do so from the preliminary investigation up to the hearing. The Council can issue an intermediary judgment to order mediation. It may also take the initiative to propose mediation.

These innovations or changes are aimed at the search for practical solutions. Thus, abolishment is no longer the only purpose of the procedure. Room is left for alternative dispute resolutions such as mediation. The parties will be able to find a solution, which is acceptable for all, through direct dialogue and under the direction of a mediator. The initiative to find a negotiated solution remains with the parties, what could enhance a long lasting solution.

The question that now arises is how this would happen in practice. Could this lead to a better legal protection and would this really lead to a more effective and quicker procedure for the Council for Permit Disputes?

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Alain De Jonge

Alain De Jonge