RECENT JURISDICTION OF THE COURT OF JUSTICE OF THE EUROPEAN UNION CASTS DOUBT ON THE VALIDITY OF SEVERAL URBAN PLANNING REGULATIONS

Nowadays, the Flemish environmental law makes a distinction between measures concerning spatial planning and urban building regulations. Only measures concerning spatial planning require an environmental impact assessment to be carried out. However, the articles 2 and 3 of the Strategic Environmental Assessment directive (from now on: SEA Directive) refer to ‘plans and programmes’ without making such a distinction. All ‘plans and programmes’ are subject to an environmental impact assessment.

Within a procedure regarding the validity of a decision of the government of the Brussels-Capital Region dated 12 December 2013, the Council of State requested a preliminary ruling from the Court of Justice. The Council of State wanted to know whether urban building regulations laying down certain requirements for the completion of building projects fall under the definition of ‘plans and programmes’ which are likely to have significant environmental effects within the meaning of the SEA Directive.

The Court of Justice confirmed the preliminary ruling in a judgment on the 7th of June 2018. Therefore, every urban building regulation likely to have significant environmental effects must be subjected to an environmental impact assessment.

The consequences of the judgment are mayor. According to this judgment it is likely to expect legal uncertainty concerning lots of regulations – including several urban building codes – which have been established without previous environmental impact assessment.  

As a precaution, minister of Environment, Nature and Agriculture (Joke Schauvliege) advised to submit all new urban planning regulations to an environmental report. Before promulgating a new decree, the government awaits the final judgement of several procedures pending before the Council of State and the Council of Authorisation Disputes.

For more information, please contact Bjorn Cloots.

Gepubliceerd in: Juridisch nieuws

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