CHAPTER 3.
The licensing procedure in the last administrative instance


Section 1.
General provisions


Article 52.

The Government of Flanders or the regional environmental officer is competent in final administrative instance for appeals against express or tacit decisions of the deputation in first administrative instance.

 

The Government of Flanders shall determine in what cases the regional environmental official can make a decision regarding the appeal.

 

For its jurisdiction, the deputation is competent in the last administrative instance for appeals against express or tacit decisions of the bench of Mayor and Aldermen in the first administrative instance.


Article 53.

The appeal can be lodged by:

the permit applicant, the permit holder or the operator;
the public concerned;
the senior official of the advisory bodies or, in his absence, his authorised representative if the advisory body has given a timely opinion or if it was incorrectly not asked for an opinion;
the bench of Mayor and Aldermen if it has given a timely opinion or if it was incorrectly not asked for an opinion;
[...]
the senior official of the Environment Department or, in his absence, his authorised representative;
the senior official of the Agency for Innovation and Entrepreneurship or, in his absence, his authorised representative, if the project involves retail activities requiring a permit.
the senior official of the agency, responsible for nature and forest, or, in his absence, his authorised representative if the project involves changes to the vegetation requiring a permit.

 

[... annulled by judgment of the Constitutional Court 46/2019 of 14 March 2019].


Article 54.

To be admissible, the appeal shall be lodged within a period of thirty days beginning:

the day after the date on which the contested decision is served for those persons or bodies on whom/which the decision is served;
the day after the end of the period for making a decision if the Environment Permit is tacitly refused in the first administrative instance;
the day after the first day of promulgation of the contested decision in all other cases.

 


Article 55.

The appeal shall suspend the execution of the contested decision until the day after the service date of the decision in the last administrative instance.

By way of derogation from subparagraph 1, the appeal shall not have a suspensive effect with respect to:

the permit for the further operation of a classified facility or activity for which a permit application was submitted at least twelve months before the end date of the Environment Permit;
the permit for operation after a trial period as stated in article 69;
the permit for the operation of a classified facility or activity that has become subject to a permit through the expansion or amendment of the classification list.

 

 


Section 2.
Appeal procedure


Subsection 1.
Admissibility and completeness review


Article 56.

To be admissible, the appeal shall be submitted to the competent authority stated in article 52 by secured consignment.

 

If, in application of Article 31/1, an organised administrative appeal has been lodged with the Government of Flanders against the decision of the municipal council on the construction, modification, relocation or closure of a municipal road, the appeal shall contain a copy of the notice of appeal to the Government of Flanders under penalty of inadmissibility. 

 

To be admissible, the party lodging the appeal shall send a copy of the notice of appeal simultaneously and by secured consignment to:

the permit applicant, except where he himself is lodging the appeal;
the deputation if this took the decision in the first administrative instance;
the bench of Mayor and Aldermen, except where it itself is lodging the appeal.

  

The Government of Flanders lays down, possibly including an inadmissibility sanction, furhter rules with regard to the structure and content of the notice of appeal and the supporting documents that must be enclosed with the appeal in order for it to be loged in an admissible manner.


Article 57.

The competent authority stated in article 52 or the provincial and/or regional environment official shall review the admissibility and completeness of the appeal.

 

If all the documents stated in article 56, subparagraph 3 are not attached to the appeal, the competent authority or the provincial or regional environment official appointed by it can ask the party lodging the appeal by secured dispatch to add the missing information or documents to the appeal within a period of fourteen days beginning the day after the request for completion is sent.

 

If the party lodging the appeal fails to add the missing information or documents to the appeal within the time limit stated in subparagraph 2, the appeal shall be regarded as incomplete.


Article 57/1.

Appeals for Environment Permits that only include retail activities and that are based solely on economic criteria in relation to economic objectives are inadmissible.


Article 58.

The result of the review stated in article 57 shall be notified to the party lodging the appeal by secured consignment within a period of thirty days beginning the day after the date on which the notice of appeal was sent.

Incompleteness or inadmissibility shall ipso jure lead to the stoppage of the appeal procedure.

The decision shall be notified to:

the appellant;
the permit applicant;
the deputation if this took the decision in the first administrative instance;
the bench of Mayor and Aldermen.

 

 


Subsection 2.
Reviewing the project


Article 59.

The Government of Flanders shall appoint the advisory bodies that deliver opinions on permit applications.

The opinion of the bench of Mayor and Aldermen on the jurisdiction to which the permit application relates or of the municipal environmental official shall always be obtained, unless the appeal was lodged by the bench concerned.

 


Article 60.

In cases specified by the Government of Flanders, the competent authority, stated in Article 52, asks the municipal, provincial or regional environmental officer or the person authorised by him, for the opinion of the provincial or regional Environment Permit Committee, stated in Article 16, § 1. The provincial or regional Environment Permit Committee shall ask the advisory bodies stated in article 59, subparagraph 1 and, where applicable, the bench of Mayor and Aldermen or the municipal environmental official stated in article 59, subparagraph 2 for their opinion.

 

If the opinion of an Environment Permit Committee stated in article 16, § 1 is not required, the competent authority stated in article 52, the provincial or regional environmental officer or the official appointed by him shall ask the advisory bodies stated in article 59, subparagraph 1 and, where applicable, the board of Mayor and Aldermen or the municipal environmental official stated in article 59, subparagraph 2 for their opinion.

 

If, in application of subparagraph 1, the opinion of an Environment Permit Committee as stated in article 16, § 1 is required, the advisory bodies stated in article 59, subparagraph 1 and, where applicable, the bench of Mayor and Aldermen or the municipal environmental official stated in article 59, subparagraph 2 shall deliver their opinion to the Environment Permit Committee. The aforesaid committee shall deliver an integrated opinion.


Article 61.

The Government of Flanders shall establish the time limits for delivering opinions and can determine the elements to which such opinions must relate.

If no opinion is delivered within the established time limit, the opinion shall be deemed to be favourable.

 


Article 62.

The permit applicant as well as any party lodging an appeal can ask in the second administrative instance to be heard by:

the provincial or regional Environment Permit Committee if the opinion of an Environment Permit Committee is required;
the competent authority, or the provincial or regional environmental officer if the opinion of an Environment Permit Committee is not required.

 

The Government of Flanders can establish more specific rules in relation to the organisation of and representation at the hearing.


Article 63.

The competent authority stated in article 52 shall review the permit application in its entirety.


Article 63/1.

If the deputation is the competent authority and no opinion from an Environment Permit Committee is required, the provincial environmental officer will prepare a report for each decision on an appeal, which is part of the permit dossier. Where appropriate, the report assesses the request against the grounds for assessment determined by or pursuant to:

title IV of the VCRO; 
title V of the DABM; 
the decree of 15 July 2016 regarding the integral commercial establishment policy; 
the decree of 21 October 1997 on nature conservation and the natural environment.

The report shall include, where appropriate, a proposed response to the views, comments and objections submitted during any public inquiry. 

 

The provincial environmental officer will make this report available to the deputation no later than ten days before the expiry of the established or, where appropriate, extended decision period. In its reasoning for the decision, the deputation will indicate how the report will be taken into account. If no report is made within the established or, where appropriate, extended period, the deputation may disregard the requirement for a report.


Article 64.

Changes can be made to the permit application during the appeal procedure.

The public review of the amended permit application is not required if the following conditions are met:

the changes do not affect the protection of people or the environment or proper spatial planning;
the changes satisfy the opinions or views, comments and objections submitted during the public review;
the changes do not involve any apparent infringement of third-party rights.

  

If the conditions stated in subparagraph 2 are not met, the competent authority stated in article 52 can decide to organise a public review of the amended permit application. Where applicable, it shall obtain the opinion of the Environment Permit Committee stated in article 16, § 1 or the opinions stated in article 59, either initially or for a second time.

If the conditions stated in subparagraph 2 are not met and the competent authority has not organised a public review of the amended permit application, this authority shall not take the changes to the permit application into account in its decision.

 


Article 65.

If the application involves the construction, modification, relocation or closure of a municipal road and the competent authority establishes that the municipal council has not taken a decision on this, the governor, at the request of the deputation, the Government of Flanders or the regional environmental officer, will call the municipal council together to decide on the construction, modification, relocation or closure of the municipal road.
 
The municipal council decides on the location, width and equipment of the municipal road, and on possible inclusion in the public domain. In this regard, the municipal council may impose conditions and attach charges, which the competent authority will include in the eventual permit. The legal protection with regard to those conditions and charges is the same as that with regard to the permit.
 
The municipality submits the decision of the municipal council on the construction, modification, relocation or cancellation of the municipal road to the competent authority within sixty days after the convocation by the governor.
 


Subsection 3.
Decision on the appeal


Article 66.

§1.
The competent authority stated in article 52 shall take a definitive decision on the permit request within a period of:

one hundred and twenty days if the request was processed in the first administrative instance in accordance with the normal licensing procedure;
sixty days if the request was processed in the first administrative instance in accordance with the simplified licensing procedure.


§2.
Without prejudice to paragraph 2/1, the time limit for making a decision shall be extended ipso jure by sixty days in the following cases:

if a public review is organised in application of article 64, subparagraph 3;
if use is made of the administrative loop stated in article 13;
if the permit request includes the construction, modification, relocation or cancellation of a municipal road over which the municipal council has decision-making power and the municipal council is convened in the course of the appeal procedure in accordance with Article 65.

 

Notice of the period extension shall be sent to the applicant and the party lodging the appeal before the end date of the time limit for making a decision.

§2/1.
Without prejudice to paragraph 2, the time limit for making a decision shall be extended once by sixty days upon reasoned request by the permit applicant.

 

Notice of the period extension shall be sent to the applicant and the party lodging the appeal before the end date of the time limit for making a decision.

 

§2/2.
Without prejudice to the application of paragraph 2 or paragraph 2/1, the decision period is suspended ipso jure as long as the Government of Flanders has not taken a decision on the organised administrative appeal against the decision of the municipal council referred to in article 31/1.

 

§3.
The time periods stated in paragraph 1 shall always begin on the day after the date on which the last appeal is declared admissible and complete or, in the absence of a decision in that regard, the thirtieth day after the date on which the last appeal was submitted or after receipt of the missing data or documents, whereby the most recent date applies.

 

If no decision is made within the specified or, where appropriate, the extended time limit, the appeal(s) shall be deemed to have been dismissed and the contested decision shall be regarded as definitive.

§4.

Articles 33, 34, 47 and 38 apply mutatis mutandis to the decision.

 

§5.
The competent authority can make a decision on a permit request as stated in articles 5.4.1 and 5.4.2 of the Immovable Heritage Decree of 12 July 2013, whereby an archaeology memorandum submitted for ratification was added to the application, but make a decision once the validated archaeology memorandum has been delivered. If no validated archaeology memorandum has been submitted before the expiry of the term stated in paragraphs 1 to 3, the Environment Permit must be refused.
 
§6.
A permit for requests involving the construction, modification, relocation or cancellation of a municipal road can only be granted on appeal after the municipal council has approved the construction, modification, relocation or cancellation of the municipal road, in application of Article 31.
 
If the municipal council has not approved the construction, amendment, relocation or cancellation, or if the Government of Flanders has annulled the decision in accordance with Article 31/1, the Environment Permit will be refused on appeal.
 
§7.
If the competent authority, stated in Article 52, is unable to take a decision within the set or, where appropriate, extended period because the municipal council has not taken a decision on the construction, modification, relocation or closure of the municipal road, the municipality shall owe the applicant a non-recurring compensation of 5,000 euros.
 
Within ninety days after the expiry of the period stated in the first paragraph, the licence applicant requests payment of the one-off fee from the municipality with a secured dispatch. He refers to the dossier in his request and states his IBAN and BIC details. The municipality pays the one-off fee to the applicant without further formalities.
 
If the licence applicant does not request payment of the one-off fee within the period of ninety days stated in the second paragraph, the applicant is deemed to have waived his right to the one-off fee.
 

 


Article 67.

The Government of Flanders shall establish the more specific rules for the procedure in the last administrative instance.