Obtaining a permit in Flanders, especially for a major infrastructure project, often feels like a calvary. For some time now, The Flemish Region has been trying to remedy this situation by trying to decrease the considerable amount of jurisdictional appeals lodged with the Council of Permit Disputes ('CPD') against decision granting permits. In 2019, the Flemish Region's attempt to solely grant legal standing to lodge an appeal with the CPD to those persons who objected during the general public inquiry ('openbaar onderzoek' / 'enquête publique') was met by opposition from the Constitutional Court. In a new attempt, the Flemish government strengthened its (standing) requirements, but this attempt by and large failed anew. Indeed, on April 11, 2023, the Constitutional Court (retroactively) annulled two of the three conditions that the Flemish legislator intended to impose in halt the waterfall of appeals lodged with CPD.
Background: an attempt at acceleration
A myriad of projects in Flanders do not get off the ground because they get caught up in either the permitting process itself, or in the appeals proceedings often lodged against decisions with respect to permit. According to the Flemish Government, the delays incurred are largely due to "excessive participation and appeals options".
An earlier optimization attempt sought to drastically limit the number of persons who could admissibly lodge appeals with the CPD to those who had made their voice heard during the public inquiry (preceding the permit decision). Only those persons would be allowed to have their say in court. However, this arrangement was annulled by the Constitutional Court because it disproportionately restricts and even erodes the right of access to justice (judgment of 14 March 2019, No. 46/2019).
Having been sent back to the drawing board, the Flemish government expressed the desire in its coalition agreement of 2019 to strengthen active citizenship by attaching consequences to a lack of active participation. Furthermore, the government agreed to introduce, before the CPD, a so-called relativity requirement based on the Dutch model (more on this later).
The government agreement found its way through Parliament and resulted in the 21 May 2021 Optimization Decree. The latter imposed three (additional) legal standing requirements before the CPD. Since the entry into force of the decree, in order to have legal standing before the Flemish administrative courts (including the CPD), three conditions must be met: 1° there must be so-called harm to an applicant's specific interests and 2° the relativity requirement was imposed, alongside 3° a duty to remain alert.
In other words, the Optimization Decree comprised a watered-down version of the legal requirements that the Constitutional Court had already cast aside in 2019. It should not have come as a particular surprise then, that the Flemish legislator again got the short end of the stick. Two of the three conditions were indeed annulled by the Constitutional Court as they violate a series of constitutional rights, i.e. right of access to justice and the right to an effective remedy, as well as the right to the protection of a healthy environment.
In this blogpost, we succinctly delve into the Court's reasoning in order to assess the implications of the judgment handed down on 11 April 2023.
Duty to remain alert ('attentieplicht'): no deflection of own duty of care
It was the new duty to remain alert that had already sparked fierce controversy before the Constitutional Court ruling. Said duty implies that applicants must have raised the arguments they intend to invoke before the CPD already earlier, i.e. at the most useful moment. If they have not, these applicants would not have legal standing. According to the legislator, such an obligation was aimed at allowing the permitting authorities to gather as much information as possible during the permitting procedure, so that it could make an informed decision.
In this regard, the Constitutional Court ruled that there is no reasonable justification for imposing such a requirement. After all, the duty to remain alert requires citizens to be able to identify all their legal objections in often complex and technical cases very early on. According to the Court, the idea of reciprocal administrative law (in which citizens have rights, but also obligations vis-à-vis authorities) cannot justify that the fact that illegal actions by authorities have less far-reaching consequences than the fact that a citizen might not have noticed (and shared) a legal issues encountered. After all, the authorities have an obligation to demonstrate due diligence while adopting their decisions and must themselves be able to remedy any legal irregularities arising. In other words, the administration cannot deflect its due diligence duty ('zorgvuldigheidsplicht').
The Court furthermore casted doubt on whether the objectives of expediting the proceedings and final dispute resolution could justify the restriction on access to justice at all, since the duty of to remain alert would result in side-debates on whether each argument (against a particular permitting decision) was raised at the most "useful" time. Since this distraction from the merits of the case was deemed to disproportionality restrict citizens' right of access to justice, the requirement was set aside by the Constitutional Court.
Relativity requirement fails to meet its intended objective
A second hurdle raised by the Flemish legislator was the so-called relativity requirement, which limits the number of pleas ('middelen') developed before the administrative judge. According to this requirement, only rules and principles manifestly meant to protect the interests of the applicant, could be admissibly invoked in court. This requirement was intended to avoid a number of situations in which citizens would gratuitously invoke norms not aimed at the protection of their own interests. A classic example of the relativity requirement at work would be the following: a displeased "villa dweller" whose views risk being obstructed by the construction of a wind turbine would no longer be able to rely on norms of nature conservation to challenge the permit. After all, such norms quite clearly do not serve to protect his interests.
The Court finds no reasonable justification for requiring an applicant, aside from proving that his interests may be adversely affected by the alleged illegality, to additionally meet the relativity requirement. In fact, by thus limiting the CPD's reach to the abstract interests furthered by the norms invoked, without taking into account the concrete effects that the violation of those standards has on an applicant's interests, the relativity requirement runs counter to the objective of final dispute resolution. Worse still; accepting a relativity requirement could incentivize the legislator to purposefully limit the scope of protection of norms, hence further eroding legal protections. Additionally, since the purview of protection of most legal norms is not set in stone (and may be difficult to determine), the relativity requirement conflicts with the principle of legal certainty. This second requirement, then, was also annulled by the Constitutional Court.
Only remaining hurdle: legal standing to develop pleas
The only condition that the Court leaves intact enshrines existing case law (of the CPD and for instance the Council of State). An applicant must not only demonstrate that he has standing to lodge the appeal itself ('belang bij het beroep'), but also that he has standing to develop every single plea enshrined in his appeal ('belang bij het middel'). This means that the specific illegality invoked in a plea must prejudice the applicant (so that granting the appeal is in fact beneficial to the applicant). In other words, an illegality in proceedings before the CPD can only justify an annulment if the applicant alleging the illegality is harmed in his interests by the alleged illegality (which is not the same as saying that the provision whose illegality is alleged was intended to protect the interests of the applicant).
The Constitutional Court leaves intact the requirement of harm to interests, but clarifies, in line with its previous case law, that this should be interpreted to mean that environmental associations should always be deemed to have had their collective interest damaged by an illegality in decision-making in environmental matters.
Legal protection over (perceived) efficiency gains – to be continued..?
As of yesterday, the annulled provisions have been retroactively stricken from the jurisdiction. Consequently, the ruling has a direct impact on projects currently still in the permitting phase and on any case pending before the CPD. Moreover, any ruling of the CPD based on the duty to remain alert or on the relativity requirement would have been open to challenges. Fortunately, the CPD was keenly aware of the case pending before the Constitutional Court and of the Court's 2019 case law. Probably mindful of the potential annulment, the CPD and other administrative judges had prudently refrained from rejecting appeals relying on the duty to remain alert or on the relativity requirement.
And just as well ... this makes the implementation of the Constitutional Court's ruling much easier in practice. Not sharing in this ease, may be the Flemish government itself. It is unclear at this point whether the government will go back to the drawing board, but if it does, it should consider paving a different path towards the laudable objectives of optimizing the permitting process.
We continue to closely monitor the evolutions.