Codex Train Land-use Planning - An Overview of the Important Changes - 8/12/2018

On 29 November 2017 the Flemish parliament approved the 'Codex Train', which provides the legal basis for the Flanders Land-use Policy Plan. Among other things the voluminous decree makes provisions for living closer together, provides for new types of housing and abolishes the old subdivision criteria.

The land-use planning decree is more than four hundred pages long and should eventually pave the way for the Flanders Land-use Policy Plan or 'concrete freeze'. It should stop extra open space from being swallowed up after 2040.

Among other things the decree abolishes some old subdivision regulations that frequently prevented the conversion of large houses into smaller homes. For the residents of a subdivision who want to escape the regulations it means that in many cases they will no longer have to persuade their neighbours to sign a petition. More people will qualify for a care home, which will enable them to put a flat in the home for an elderly person, for example.

Below, a few of the most significant changes (as per 8 December 2018):

  • In future, an administrative appeal against a permit that has been issued will only be possible if a reasoned objection had already been lodged during the public inquiry. Hence, vigilance is needed.
  • There will be more options in order to optimise land-use efficiency. For instance, subdivision regulations dating back more than 15 years will no longer constitute a ground for refusal.
  • A similar rule applies to regulations of local zoning plans: in certain cases, the competent authority can depart from town planning regulations of BPAs dating back more than 15 years.
  • For the division of a classified installation or activity (partial transfer), in certain cases a permit will be required (whereas before a mere notification was sufficient).
  • Applying façade insulation to the exterior of a house ≤ 26 cm will be considered to be remedial work within the existing building volume.
  • It will be possible to issue a permit for one stable for pet farm animals in an agricultural area, as long as there are no existing stables.
  • If a permit holder has not been able to start the execution of the licensed construction works in time (within two years), the expiry period can be extended in case of force majeure.
  • There will be more options in exploitation areas. In addition to the exploitation of primary raw materials, the mechanical treatment of extracted minerals or enrichment of extracted minerals by mixing them with degradation products will also be possible.
  • The as-built certificate has been introduced (issued by the architect) with the concept of 'metsershaar' being the margin of tolerance. These are purely technical variations of the type that occur in every building project. The as-built certificate is the sum of (i) the building permit, (ii) the margins of tolerance set out in the decree (metsershaar), (iii) the building operations that do not require a permit, (iv) the building operations that are exempt and (v) the building operations to be reported during the construction process in buildings.
  • The process of the so-called flagged areas has been defined in this decree. This enables the Flemish Government to flag certain areas as 'water-sensitive open space areas', for the purpose of safeguarding the water-storage capacity of these areas. The type of acts that are still allowed (to a limited extent) will also be indicated.
  • The land-use structure plans are replaced with 'land-use policy plans'. This will allow provinces and municipalities to develop strategic policies without losing flexibility.
  • In future, the Flemish Government will not only be able to suspend a local land-use plan, but also to annul it.
  • The Flemish Government will be able to abolish provisions of a municipal land-use structure plan following the advice from the municipal council.
  • There will be a possibility to create an "intermunicipal committee on land-use planning".
  • The College of Mayor and Aldermen may waive the requirement of a report by the public officer responsible for the environment if it has not been issued in time.
  • During the development of a land-use plan, scheduling a plenary session is no longer mandatory, yet it remains possible to do so. In the new procedure only written opinions and remarks will be allowed during the plenary session.
  • When drafting a town planning regulation the province as well as Flanders shall be consulted for advice.
  • The Codex train provides clarity with regard to the interpretation of the label “scenically valuable” in agricultural areas.

The provisions of the Codex Train come into force, as a general rule, on the 10th day after publication in the Belgian Official Journal. However, the Flemish government has yet to set a coming into force date for some provisions. Finally, the coming into force of some provisions is linked to the coming into force of articles in other decrees. So it will always be necessary to check whether or not a given article in the Codex Train applies.

Source: Annelies Verlinden & Thomas Sterckx - DLA Piper advocaten / Belga