The Licensing Disputes Board confirmed in a recent ruling on a case where our colleague Niels Vansimpsen acted for the applicant, following previous case law of the Constitutional Court, that the appeal period for third parties against an entry in the permit register only starts from the moment of actual knowledge of the decision. Previously, the period started from the moment the decision was taken (even if one does not yet have actual knowledge of it).
Why is the appeal period against a listing on the licence register important?
An unlicensed construction may be included in the municipality's permit register. This can be done, for example, based on a presumption of permit for structures that existed before the regional plan came into force. Such decision to designate a construction as deemed licensed is a 'registration decision'.
If you are inconvenienced by this construction, or if you believe that the existence or expansion of this construction affects your rights, you can appeal the registration decision. For example, you can claim demolition.
For example, consider an unlicensed outbuilding on your neighbour's plot. Due to extension works, this outbuilding takes away sunlight on your terrace. If your neighbour invokes the presumption of authorisation, the outbuilding, including extension works, is considered authorised. You cannot then later claim remedial action.
Find more information on the presumption of licence here.
What are the implications of this ruling?
The normal time limit to appeal a registration decision is 45 days after the construction is entered in the licence register. You will obviously not be kept informed of such a decision. Nor can you check the permit register every day to see whether new structures have been included.
Therefore, the ruling of the Council for Permit Disputes provides that the appeal period starts from the date of actual knowledge of the decision. Specifically, you now have 45 days to appeal from when you have actual knowledge that the construction is deemed to be licensed.
This judgment represents an important improvement in legal protection for local residents who are faced with an unlawful inclusion of a neighbouring (nuisance-causing) building in the permits register. What is crucial, however, is that you demonstrate when you actually became aware of the registration decision.
For example, in the example above, you could argue that the municipality did not sufficiently investigate whether the various renovations carried out on the annexe did not significantly change the initial condition of the annexe. And therefore the annexe does not in fact correspond to the then existing condition before the regional plan came into force, so that the annexe as a whole should not be licensed. You have 45 days to file an appeal after being informed of the registration decision.
Do you have questions about the listing of a property on the licensing register or the presumption of licence? If so, please feel free to contact on and we will see how we can help you further.
