Commercial establishment policy: an overview of regional implementation
The commercial establishment policy in Belgium is now a regional matter. With the Flemish Decree of 15 July 2016, Flanders was the last of the three regions to adopt commercial establishment policy legislation.
This article provides an overview of the current legislation in the Belgian regions Flanders, the Walloon Region and the Brussels-Capital Region.
The purpose of a commercial establishment policy is to manage the expansion of large commercial areas while maintaining a balance with smaller retail establishments.
Further to the sixth state reform, commercial establishment policy is now a regional power. Thus, specific legislation is applicable in Flanders, the Brussels-Capital Region and the Walloon Region, whereas previously this matter was governed solely by the federal Act of 13 August 2004. Flanders was the last of the three regions to adopt commercial establishment policy legislation, with the Flemish Decree of 15 July 2016. The Act of 13 August 2004 has now been repealed, with the exception of a number of transitional provisions. Please find below an overview of the current regional legislation.
The Flemish Region
Pursuant to the Decree of 15 July 2016 on the integral commercial establishment policy, the former socio-economic permit will be integrated into the so-called single permit and henceforth referred to as the "single permit for retail activities".
The decree entered into force on 29 July 2016, although the provisions on the single permit for retail activities will only be applicable as from 1 January 2018. Until that time, the federal Act of 13 August 2004 will continue to apply to pending and new permit applications.
A single permit for retail activities is required in order to start, expand, combine or modify such activities at existing or to-be-created premises with a net commercial surface area of at least 400 m². A permit is not required, however, if the net commercial surface area is extended by less than 20% or 300 m². The "net commercial surface area" is the area used to offer goods for sale and which is accessible to the public, including tills and the area around them as well as the entrance, but excluding for instance storage areas and areas reserved exclusively to personnel. Thus, it should be noted that the net commercial surface area is not the same as the gross leasable area (GLA), which is often used to measure commercial areas.
Retail activities are divided into four categories pursuant to the new decree:
- the sale of food;
- the sale of goods for personal use;
- the sale of plants, flowers and agricultural and horticultural goods;
- the sale of other products.
It should be noted that the decree only applies if the retail activity implies "the sale of food" (i.e. if there is a shop). The hospitality industry is excluded from the scope of application of the decree.
As mentioned above, the procedure provided for by the Act of 13 August 2004 will remain applicable until 1 January 2018. Thus, the Board of the Mayor and Aldermen is responsible for granting a socio-economic permit. For projects with a net commercial surface area of more than 1,000 m², an opinion from the National Social-Economic Committee for Distribution is also required. As of 1 January 2018, the procedure determined by the Decree of 25 April 2014 (which entered into force on 23 February 2017), i.e. a single permit for retail activities, will apply. Further to the decree, the Board of the Mayor and Aldermen, the Provincial Council or the Flemish government/regional urban planning officer will be competent to grant the permit, depending on whether the project is a municipal, provincial or regional one.
Existing socio-economic permits or authorisations, issued under the federal Act of 13 August 2004 or the Act of 29 June 1975, will remain valid and be considered as single permits for retail activities.
The Walloon Region
The Walloon Region adopted a decree relating to commercial establishment policy on 5 February 2015; the decree entered into force on 1 June 2015. The criteria which must be taken into account when an application is submitted for a commercial establishment permit are specified in a ministerial decree of 2 April 2015.
As under the Act of 13 August 2004, a commercial establishment permit is required when the project's net commercial surface area exceeds 400 m². A permit is required for both new establishments and extensions to existing retail establishments, commercial complexes and projects modifying the nature of the commercial activity.
In addition to a commercial establishment permit, another permit, i.e. an environmental permit, a building permit or a so-called single permit (a combined environmental and building permit), may also be required, depending on the project. In this case, an integrated permit will be issued, encompassing the commercial establishment permit and the environmental, building or single permit.
In addition, the Decree of 5 February 2015 provides that a preliminary notification to the Board of the Mayor and Aldermen is required for commercial establishments with a surface area of 400 m² or less. Such a notification is required as well in the event of minor extensions, i.e. less than 20% of the surface area or up to 300 m².
In general, the Board of the Mayor and Aldermen is competent to assess applications for commercial establishment and integrated permits.
Exceptionally, the commercial establishment officer appointed by the Walloon government has authority to assess permit applications in the following cases:
- the commercial establishment is located in several municipalities;
- the surface area of the commercial establishment exceeds or will exceed (after extension) 2,500 m²; or
- the commercial establishment entails works for which a building permit is required and that fall under the officer's authority.
When assessing the permit application, the following factors must be taken into account: consumer protection, environmental protection, political and social objectives, and contribution to long-term mobility.
The Brussels-capital Region
By means of the Ordinance of 8 May 2014, the Brussels-Capital Region consolidated the commercial establishment and building permit application procedures, as described in the Brussels Regional Development Code (CoBAT/BWRO).
The former socio-economic permit has been abolished as a separate permit. When a building permit is applied for, special attention is paid to the consequences of the project if the commercial surface area exceeds or will exceed 400 m². In this assessment, the following aspects are taken into account: consumer protection, health and safety, traffic conditions, accessibility, parking, and the integration of the project into the urban environment. It follows that such an assessment will only be required if a building permit is needed for the commercial establishment.
An exception is made for the extension of a commercial establishment by less than 20% and no more than 300 m² compared to the last commercial establishment permit. In this case, if the commercial activity is not changed, the modification will not be considered "significant".
For projects which could have significant effects, a preliminary impact report is required, describing the short- and long-term consequences of the project. Such a report is not required if the net commercial surface area is less than 1,000 m².
In general, the Board of the Mayor and Aldermen is authorised to grant building permits, including for retail establishments. However, permit applications for larger projects which require an impact report, will be assessed by the responsible official of the Brussels-Capital Region.