At the applying for an environmental permit there are several possibilities to deviate from the urban development regulations. For example, you can provide for a different roof shape under certain conditions. Or you can plant the structures differently than legally required. You can also, under specific conditions, change the function of an existing building to a function that does not comply with the zoning regulations. In this case, we speak of a zonal change of function.
Here you will find detailed information about the options at a zoned property.
If you wish to invoke such a derogation from planning regulations, the Collection Decree Environment you will now have to explicitly indicate this in certain cases when applying for your single permit. You will also have to explicitly indicate the specific possibility of deviation you are invoking. You will also have to explicitly justify the deviation from the urban development regulations. If you do not explicitly request or justify a derogation while it is mandatory, the board may not apply for the possibility of derogation. Current article discusses the impact of this new obligation on applying for an environmental permit.
More information on the procedure for applying for an environmental permit can be found here.
How do I know when I deviate from town planning regulations?
To know whether you are deviating from town planning regulations when applying for an environmental permit, you should of course first find out what regulations apply.
The places where these regulations may be included are very diverse.
For example, town planning regulations may be included in:
- The Region Plan;
- A municipal, provincial and/or regional spatial implementation plan (RUP);
- A general or special plan of arrangement (APA or BPA);
- Regulations of a subdivision less than 15 years old;
- A municipal, a provincial and/or a regional town planning regulation, for example in terms of the minimum number of parking and bicycle parking spaces to be provided.
Knowing which regulations apply to your plot is, of course, only the first step. Next, you will need to check whether your application deviates from them and whether it is possible to get this deviation authorised.
Attention: A special regime applies to regulations of a subdivision that is more than 15 years old. In principle, these may no longer be used as grounds for refusal. This will not be discussed further in this blog post.
In what cases can I deviate from planning regulations?
The cases where you can deviate from planning regulations are stipulated by law.
The options provided by law to deviate from planning regulations are as follows:
- the possibility of limited deviation from regulations on plot dimensions, dimensions and implantation of structures, roof shape and materials used (article 4.4.1 VCRO);
- performing stability works (article 4.4.2 VCRO);
- Construction of a dwelling against an existing guard wall in residential reserve area (section 4.4.3 VCRO);
- socio-cultural or recreational co-use (article 4.4.4 VCRO);
- shared use regarding natural beauty (article 4.4.5 VCRO);
- the possibility to deviate from urban planning regulations in case of acts on a protected monument or within a protected town or village view, a cultural-historical landscape or an archaeological site (article 4.4.6 VCRO);
carrying out certain acts of public interest (article 4.4.7 VCRO); - certain operations in industrial areas (article 4.4.8/1 VCRO);
- provision of stalls for grazing animals (Article 4.4.8/2 VCRO);
- the provision of wind turbines or other energy production facilities (article 4.4.9 VCRO);
- the possibility to deviate from the requirements of a special plan of construction (BPA) older than 15 years (article 4.4.9/1 VCRO);
- The basic rights for zonal constructions and zonal
- function changes (sections 4.4.10 to 4.4.23 VCRO);
- the planning attestation scheme (Articles 4.4.24 to 4.4.29 VCRO).
Each of these options in turn is subject to specific conditions that must be met. You will also have to demonstrate and justify this.
Alternatively, a possibility of derogation may be specifically inscribed in the regulations themselves. In this case, you will have to comply with the specific conditions set out in those regulations themselves to make use of this derogation possibility.
If you wish to combine several derogations, you will have to demonstrate compliance with all conditions for each derogation separately.
When do I need to explicitly request and justify the deviation from the planning regulations?
You should only apply for the deviation from the urban development regulations with reasons if you use the legally provided options listed above.
If you wish to invoke a possibility of derogation provided for in the planning regulations themselves, this is not compulsory. However, such an obligation will often be imposed in the regulations themselves. However, even if such an obligation is not imposed, it is still advisable to include a motivation when applying for an environmental permit. In this way, you avoid the authorities refusing your application solely because it conflicts with the urban development regulations.
Read more about what you can do in case of an environmental permit refusal here.
After all, the board is not obliged to check by itself whether a derogation can be used. It also avoids possible discussions at the Licensing Disputes Board that the derogation application would not have been available for inspection during the public enquiry.
More information on the conduct of the public enquiry can be found here.
What if I forgot to mention the deviation from planning regulations in my application?
The consequences if you forgot to mention the deviation from planning regulations in your application vary from situation to situation.
If you wish to invoke the derogation options provided by law and you forgot to mention this in your application, the board is basically obliged to refuse your application. However, you can add such a request to your application during the term of your application. In that case, it is best to ask for a new public enquiry into this derogation application. In this way, you avoid any further discussions with the Council for Permit Disputes about the fact that the application for a derogation was not made available for inspection during the public enquiry.
Find more information on the procedure at the Licensing Disputes Board here.
However, be careful with this: the number of times you can ask for a new public enquiry is limited. If these possibilities are exhausted, you will have to submit a new application in which you do request the derogation with reasons.
The decree on the modular environmental permit provides for a substantial change in the procedure for applying for an environmental permit. This decree may also change the possibilities for having a new public enquiry organised. However, when these regulations will enter into force is not yet certain. Until then, you should bear in mind that the number of times you can request a new public enquiry is limited.
If you wish to invoke a possibility of derogation provided in the regulations themselves and you forgot to mention this in your application, the board is only obliged to refuse the application if this is provided for in the regulations themselves.
However, as indicated above, it is always advisable to request the derogation with reasons. In this way, you avoid the administration refusing your application purely because it deviates from the urban development regulations. This also avoids discussions with the Council for Permit Disputes. You can always add such a motivation during the term of your application. In this case too, it may be advisable to have a new public enquiry organised.
Conclusion: deviation from town planning regulations
Knowing which regulations apply to your application can be a particularly complex matter. Especially when you take into account that not only the municipality can issue rules, but also the province or the Flemish Region. You will then have to check whether your application deviates from these and whether it is possible to have this deviation granted. Moreover, in some cases you will also have to determine which specific derogation possibility you wish to rely on and you will have to explicitly justify this derogation. After all, otherwise you run the risk of the board refusing your application. This is not always straightforward. It is therefore advisable to seek advice on this from a specialist in the field. Our environmental law lawyer can assist you with this.
Do you wish to deviate from planning regulations for your application for an environmental permit? Or are you unsure which regulations apply or how to go about it? Then feel free to contact up with our environmental law lawyer. It assists you with permit applications for all of Flanders.
