Environmental Impact Assessments, Standing, Permits

In many regional land use plans of the Walloon Region so-called “deferred development zones of an industrial nature” were introduced over time.  The development of such zones was, before the contested Amendments of the Walloon Town and Country Planning Code (Decree of the Walloon Region of 3 February 2005), conditional upon the existence of a municipal planning scheme for the whole area. Failing that, the zone could not be developed.  As a result of the Amendments such a zone could since then be developed without such a prior municipal planning scheme for the whole area and permits could be granted for all economic activities with the exception of “agro-economic neighbourhood activities” and “wholesale distribution”.

Inter-Environnement Wallonie (that is the umbrella environmental NGO in the French speaking part of Belgium) criticized the challenged decree provision for abolishing the municipal planning scheme as an instrument for the development of these zones, and for failing to put an equivalent document in its place. This abolition and this failure were thought to constitute a deterioration of the procedural guarantees and thus a violation of the standstill obligation in terms of the right to the protection of a healthy environment, as guaranteed by Article 23 of the Belgian Constitution. Furthermore, Articles 10 and 11 of the Constitution were also thought to have been infringed, insofar as the local residents of such zone would not see this area being developed in accordance with the relevant standards and regulations, nor obtain an environmental impact assessment of the programming measures for the area in question, nor have any say in the way in which the area would be developed.

The Court found a violation of article 23 of the Constitution, taking into account Articles 3 to 6 of Directive 2001/42/EC of the European Parliament and the Council of 27 June 2001 on the assessment of the effect of certain plans and programmes on the environment, and Article 7 of the Aarhus Convention.

The Court held:  […] Under the previous legislation, the development of a deferred development zone of an industrial nature was subject to a municipal planning scheme for the whole area. Such a municipal planning scheme, even if it took the form of a simplified municipal planning scheme (Article 49, second paragraph, of the Walloon Town and Country Planning Code), was subject to environmental impact assessment in accordance with the requirements of Articles 50 to 53 of the Walloon Town and Country Planning Code, including the necessity of calling upon an approved project author, the obligation to seek the opinion of specialized authorities, the intervention of the municipal council and the obligation to organize a public inquiry. In the absence of such a municipal planning scheme, elaborated in accordance with the aforementioned guarantees, a deferred development zone of an industrial nature could not be developed. The guarantees which the challenged provision puts in their place, more particularly the obligation of justification in the light of the elements referred to in the fourth paragraph of the challenged provision, cannot make up for the loss of the substantive and procedural guarantees that are linked to the preparation of a municipal planning scheme. Consequently, local residents of such areas are confronted with a significant deterioration in the level of protection that was offered by the previous legislation, a deterioration that on the basis of the aforementioned provisions of European and international law cannot be justified by the reasons of public interest underlying the challenged provision. […] The ground is well-founded insofar as the challenged Article 55 does not provide for an environmental impact assessment procedure that satisfies the requirements of the aforementioned Directive 2001/42/EC and of Article 7 of the aforementioned Aarhus convention.”

This was the first case in which the Court annulled a legal provision for violation of the stand still obligation, also known as the principle of non-regression.