The Unique Environmental Permit,
a reality soon

The entrepreneurial world and entrepreneurs’ organisations have been pleading for smoother and faster procedures for investment projects for years.

Both for public and private investors it becomes increasingly difficult to realise major investment projects within a reasonable period of time. Especially mixed projects requiring an urban development permit and an environmental permit, demand numerous administrative demarches and a (too) long (a) time duration. Therefore, the problem is often an exaggerated period of time between the time of obtaining both permits.

After all, quick and simple permit procedures are a necessity for companies that want to invest in Flanders and wish to remain operational. Not only business projects but also civilian and public projects should enjoy a similar procedure. Although a similar permit already exists in Wallonia and with our northern neighbours, the sighing of the entrepreneurial world seems to gradually come to an end.

On a proposal by the Flemish Ministers of the Environment and Spatial Planning Joke Schauvlieghe and Philippe Muyters the Flemish Government approved the Environmental Permit Decree in principle on 19 April and 19 July 2013. This is the logical consequence of the start note of 22 July 2011 on the implementation of the unique Environmental Permit.  This Decree should therefore be regarded as the biggest reform of our permit granting policy since 1991. In the meantime, the Flemish Government has announced it wishes to let the Decree enter into force before the end of the current legislature.

The aim of the implementation of the Environmental Permit is to integrate the environmental permit (or notification) and the urban development permit (or notification) into one permit. The purpose of the draft decree is also to make the existing hodgepodge of permit procedures simpler and more transparent, paying particular attention to the participation of the public. There will, therefore, be one permit, one advice and one decision.

Since 1 January 2010 there has been an integrated permit granting process in Flanders for class 2 installations. As a result of the decree this integrated permit granting process will also be extended to class 1 installations. This implies that the VLAREM1 list will need to be reclassified, causing a large number of installations to be downgraded, which means they will fall within the competence of the municipalities.

1.    Guidelines of the (Draft) Decree

1.1 Integrated permit granting means substantial time savings, integrated assessment, and avoids conflicting decisions

The proper aim of the draft is to create a procedural framework for an integrated permit granting procedure in which both the urban development and the environmental aspects of a proposed project are judged according to an integrated procedure.

The objective is to enable the applicant to submit his application to one authority, whereupon one public inquiry and one consultation round will be organised. In some cases, an opinion of the Environmental Committee will be required. This will result in a single permit granting procedure, one assessment and one permit for both the urban development and the environmental aspects of a proposed project.

The integrated permit granting procedure creates a more efficient permit granting with a maximum synergy of the steps involved. This procedure must produce a more user- friendly, faster and better result than the existing system of individual permit granting procedures.

The existing permit granting procedures for urban development and housing estates and for the operation of classified installations in application of the Flemish Spatial Planning Code (VCRO) and the Environmental Permit Decree will, therefore, be integrated into the Environmental Decree. The Decree also integrates the dealing with the environmental impact report and the surroundings safety report into the new permit granting procedure.

The integration enables entrepreneurs to obtain one permit authorizing them both to perform the urban development act and to operate an establishment on the basis of one permit application. Dropping different procedures for the realisation of complex projects will result in substantial time savings. In addition, limited procedural time limits will be introduced in order to guarantee time savings. The existing decrees (Flemish Spatial Planning Code and Environmental Permit Decree) do not always provide for a sanction in case the procedural time limits are exceeded, which will be the case here. Failure to deliver a timely opinion will be sanctioned with a favourable opinion. Comparisons with other countries show that with the decree Flanders significantly improves its "time-to-permit", i.e. the period between the application and the final decision.

An integrated permit granting includes a full assessment of both the urban development and the environmental aspects associated with the realisation of a project. Content related aspects will be dealt with more efficiently, which will lead to qualitatively better decisions for the entrepreneur-applicant.  In this way, conflicting decisions will be avoided.

In addition, the integrated permit granting procedure will finally put an end to legal problems resulting from the linking of the urban development permit and the environmental permit (section 4.5.1. of the Flemish Spatial Planning Code and section 5 § 1 of the Environmental Permit Decree) making the implementation of both permits dependent on each other.

1.2 Limitation of procedures and coordinated permit

The Environmental Permit Decree reduces the number of permit granting procedures to two, unlike the Flemish Spatial Planning Code, the Environmental Permit Decree and VLAREM which require a permit granting   based on several different procedures.

So, two procedures which contribute to an increased transparency of the regulations, are implemented:

- an ordinary procedure, in which a public inquiry is conducted, with a decision period of 105 days;
- a simplified procedure (i.e. without a public inquiry) with a decision period of 60 days.

The Decree also contains a notification procedure for projects requiring notification.

The Decree implements the coordinated environmental permit for classified installations or activities. As a result, the beneficiary of the permit always has one permit showing the current permit situation for the operation of the classified establishment or activity.

1.3 Environmental permit of indefinite duration provides an economic advantage and greater legal certainty

The Environmental permit will be granted for an indefinite period of time (i.e. 'permanently'). However, the Decree exhaustively lists the cases when they will be granted only temporarily. As a result the cost, which can easily amount to EUR 4,000.00 EUR, for compiling and submitting a permit application, will no longer have to be paid with the implementation of the permanent environmental permit.

Thanks to the indefinite duration of the environmental permit, the permit holder or operator no longer has to take the finiteness of the permit into account when he wishes to make investments in his company.

The draft 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.

1.4 Guarantees for the protection of people and the environment and civic participation through accompanying measures

The introduction of a permanent environmental permit by abolishing the renewed permit granting procedure does not mean that the protection of people and the environment are affected. Public participation also remains guaranteed. In order to ensure this, it has been provided that the implementation of a permanent permit will go hand in hand with a number of so-called "accompanying measures".

The draft decree provides for different evaluations to which the classified installations will be subject:

(i)    specific evaluations: to be organised at new Best Available Techniques (“BATs) ");;
(ii)    the integral periodic evaluation: for plants with IPPC installations falling within the application of the European Industrial Emissions Directive (IED Directive – 201075EU);
(iii)    participation possibility of the public concerned at the end of each operating period of 20 years, whereby the public concerned or the administrative authority involved in the file has the opportunity to formulate remarks on the further operation of the classified installation or its activity. In this case, a procedure for the profit granting authority will be started which might entail the alteration of environmental conditions, limitation of the object or the duration of the operation, i.e. the environmental permit can be adjusted during its life.

1.5 Prior consultation, administrative loop and qualitative permit granting

The decree makes an optional prior consultations 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 himself 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 regional and provincial channels. This approach will contribute to a qualitative permit granting. Its execution still has to be determined by a resolution of the Flemish Government.

2.    Conclusion

A quick and successful obtaining of a building and environmental permit has been a thorny issue both for Flemish and for foreign companies for years. The procedures to be followed by a permit applicant at the various government agencies are complicated and all too often generate conflicting decisions. In addition, in today’s existing system a permit applicant can obtain an environmental permit for a maximum period of 20 years, while similar permits are issued for an indefinite period of time in our neighbouring countries. In this respect 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.

In addition, the Flemish Government has decided to assign the dealing with suspension and annulment disputes to the Council for Permit Disputes. The dealing with environmental disputes is also transferred from the Council of State to the Council for Permit Disputes. This implies that the powers of the Council for Permit Disputes will be significantly extended. This extension of powers threatens to cause additional problems in the future having regard to the fact that the Council for Permit Disputes is already struggling today with a big backlog and is not (no longer) able to dispose of the pending appeals within a "reasonable period time". This is especially a problem for appeals filed before 1 September 2011, some of them have been being tried for 3 years! Meanwhile, organisational measures have been taken by the Government to clear the backlog of the Council, but this, however, turns out not be enough. Important organisations and advisory councils are, therefore, pleading for the merger of the Environmental Enforcement Board and the Council for Permit Disputes into one Flemish tribunal in order to efficiently deal with appeals. Without real implementation resolutions, it remains difficult to assess the actual impact concerned. Everything will, therefore, depend on the implementation decrees of the Flemish Government. The decree should normally enter into force in 2014, but there is already speculation that it will not make its entrance until mid-2015. Despite the “faster” environmental permit during the administrative phase, a suspension and/or annulment appeal might be a stumbling block to the final obtainment of the permit. How the Council for Permit Disputes is going to deal with this remains a question mark.

As the draft decree has already been approved by the Flemish Government twice, the efficient implementation of the Decree depends on the implementation decrees of the Flemish Government. As a result, the environmental decree will finally be turned into reality.

16 December 2013

Leila Mstoian - leila.mstoian@peeters-law.be
Alain De Jonge - alain.de.jonge@peeters-law.be