In a previous article, we explained that the Flemish Government had submitted a draft decree to optimise the procedure at the Council for Permit Disputes. One of the main changes was the stricter interpretation of the interest in an appeal. However, this decree also provides for some other changes. Meanwhile, the Flemish Parliament approved this decree. Following this approval, this article further explains the procedure before the Council for Permit Disputes.
When can I file an appeal with the Licensing Disputes Board?
You can only lodge an appeal with the Council for Permit Disputes if you have already lodged an appeal with the province or the Flemish Government. A procedure before the Council for Permit Disputes is therefore only possible at the end of the procedure. For example, if you do not agree with the decision of the province or the Flemish Government.
Find out more about contesting an environmental permit here.
Within what deadline should I file an appeal with the Licensing Disputes Board?
To file an appeal with the Licensing Disputes Board, you need 45 days' time. This to be counted from the day after the first day of posting.
We are often asked whether it is not mandatory to mention the start date of the billboard on the poster. Based on legislation, this is not compulsory. However, this can be done without any obligation. Some municipalities provide space on the posters they make available for this purpose. yellow poster. It is always the posting that starts the appeal period for third parties. If this posting is not regular or does not take place, the period for lodging an appeal does not start to run.
This article provides more information on the course of the posting and the yellow poster.
As it is not mandatory to mention the exact date of the posting on the yellow poster, to find out the exact appeal period, it is best to appeal to the Environment counter. Indeed, it states until when the exact appeal period for third parties runs. Based on jurisprudence from the Council for Permit Disputes, you are usually legally allowed to proceed on this deadline.
How do I submit an appeal to the Licensing Disputes Board?
Bringing an annulment action is done by filing an application for annulment. In it, you set out the reasons why, in your opinion, the licence is unlawful. In your petition, you will have to indicate with sufficient precision which rule of law you consider to have been violated. You will also have to state why you consider them to have been violated.
It is therefore not enough to merely state factually why you do not agree with the project. You must show that the permit granted violates a rule of law. And you must do so using legal argumentation. For this, it is best to have someone with the relevant knowledge assist you. Otherwise, you run the risk that your petition will be inadmissible.
More information on filing an annulment petition can be found at The Licensing Disputes Board website.
What is the procedure at the Licensing Disputes Board?
1. Payment of roller dues
Is the petition complete? Then you will receive an invitation to pay the rolling fee within a few weeks. This amounts to 200 euros per person and must be paid within 15 days of receiving the letter. If you do not pay this roll fee or pay it late, the petition is inadmissible. A late payment cannot be regularised.
As a result of the recent decree change, in future you will have to have paid these roll fees at the time of filing the petition. If you fail to do so, you will receive a letter from the Council for this. You will then have 8 days to pay the roll duty. In the absence of timely payment, your petition is inadmissible.
The Flemish Government has yet to set the date on which this new regulation will come into force. Until then, the above scheme applies with payment of roll fees after you have filed the petition and after you have received an invitation to do so from the Council.
Is the petition incomplete? Then you will also receive a letter about this. In most cases, you then have 15 days to regularise the petition. If you fail to do so on time or are incomplete, your petition is inadmissible.
2. Submit response note (government) and/or note to intervene (licence holder)
After the Council has declared your petition complete and you have paid the rolling fees on time, the Council will transfer your petition to the other parties. In particular, to the licensing authority as defendant and to the licence holder as intervener.
The licensing authority as a defendant is always automatically a party to the proceedings. The Council notifies it of the petition you have filed. Thereafter, the government has the opportunity to respond to your petition by filing a reply note. However, it is under no obligation to do so.
Also, the Council will be the licence holder notify the petition. The latter then has the option to intervene in the proceedings. To do so, he must make an explicit request to the Council. After the court fees (EUR 100 per intervening party) have been paid for this purpose and after the Council has admitted the intervening party to the proceedings, the intervening party can set out its position in a note to intervene.
As a result of the recent decree amendment, in future the licence holder will always automatically become a party to the proceedings. This will be done without having to submit a request to the Council or pay rollover duties. Again, the Flemish Government has yet to determine when this new arrangement will enter into force. Until then, the above arrangement with the submission of a request and payment of dues will apply.
3. Submission of rebuttal note / explanatory note
If the government submits a response note, the Council will notify you. The same applies if the licence holder submits an intervention note. The Council also notifies you of this.
You may respond to this response and/or intervention note by submitting a reply note. You are not obliged to do this, but it is often advisable. After all, this allows you to respond to certain points raised by the government or the licence holder in their defence.
If the government does not submit a reply note or only the licence holder submits a note for intervention, you can file a explanatory note submit. In it, you can further explain the petition for annulment and possibly respond to the licence holder's defence.
4. Hearing and judgment
After you have submitted the rebuttal note or explanatory note, the Council will summon you to a hearing. There is no obligation to attend this. You may also choose to appear in writing. In this case, the Council will consider your case based on the notes submitted.
After considering your case, the Council will issue a judgment. This judgment usually follows within three months of the hearing taking place. However, there is no mandatory deadline for this. The Council may take longer or shorter. You will be informed of this judgment by registered mail.
What are the implications of a Licensing Disputes Board ruling?
The Licensing Disputes Board may not decide in the government's place. The Council can only verify whether the decision was taken lawfully. If it is not, it will only be able to set it aside. It is then up to the government to take a new decision. In doing so, it must take into account the content of the judgment. Usually, this new decision is taken within four months of the annulment.
In certain exceptional cases can the Council do substitute his decision for that of the government. This will be the case, for example, in cases where the government no longer has any discretion. The new decree broadens this possibility of substitution.
What if the Licensing Disputes Board rejects my appeal?
If you disagree with the ruling of the Council for Permit Disputes, you can appeal to the Council of State in cassation.
Note: this is a very special procedure and can only be done if the Council for Permit Disputes has misapplied the law. It is not possible to repeat the same discussion before the Council of State as before the Council for Permit Disputes. This is because the Council of State does not enter into the assessment of the facts themselves.
The Council of State will start from the assessment of the facts as made by the Council for Permit Disputes. Next, the Council of State will consider whether the Council for Permit Disputes applied the law correctly on the basis of these facts. If the Council of State annuls the ruling of the Council for Permit Disputes, the procedure will be resumed here.
How long do proceedings at the Licensing Disputes Board take?
The processing time for proceedings at the Licensing Disputes Board is usually 1 - 1.5 years. In certain cases, however, this can also be shorter. For example, if your case is handled through the abbreviated procedure. In this case, you should count on a few months.
How much do proceedings at the Licensing Disputes Board cost?
To file a petition for annulment, you must 200 euro rolling fee per person pay. For example, if you file the annulment petition together with 4 other local residents, you and the local residents will have to pay a total of EUR 1,000 in rolling fees (5x EUR 200).
If the council subsequently annuls the licence, the government will have to refund you these costs. It will also then give you a court fee of €700 have to pay. If the Council rejects your request, those costs will be borne by you.
If you have filed a request for suspension together with your request for annulment, these roll fees amount to €300 per person. The litigation fee is increased to €840 in this case.
Do you have questions about an appeal against a permit decision? Are you considering proceedings before the Council of Licensing Appeals? If so, please feel free to contact up with our environmental law lawyer.
