Reform of the Brussels Town Planning Act – Which modifications are already in force?
The Brussels Town Planning Act (Code Bruxellois de l’Aménagement du Territoire / Brussels Wetboek van Ruimtelijke Ordening, in short CoBAT – BWRO), has been substantially reformed by the Ordinance of 30 November 2017. This Ordinance has been published in the Belgian Official Gazette on 20 April 2018.
The entry into force of the Ordinance occurs in two phases: most of the new provisions will enter into force on 20 April 2019, i.e. one year after their publication in the Belgian Official Gazette, but following provisions are in force since 30 April 2018:
- provisions relating to town planning information (stedenbouwkundige inlichtingen/ renseignements urbanistiques);
- provisions relating to planning (planification/planologie); and
- provisions relating to urban planning regulations (règlements d’urbanisme/stedenbouwkundige verordeningen).
Town planning information
The new town planning information regime is governed by (i) the modified article 275, article 276 and new article 276/1 of the CoBAT - BWRO as well as (ii) the Decree of the Brussels Government of 29 March 2018 – published in the Belgian Official Gazette on 23 April 2018 and in force since 3 May 2018.
The municipality becomes the only competent authority to deliver town planning information, also to public entities, instead of the regional officer (gemachtigde ambtenaar/fonctionnaire délégué).
The distinction between light and substantial town planning information remains applicable.
Light town planning information can be requested by everyone and provides for the applicable regional and municipal regulatory provisions related to a property (such as the permitted use, existence of preemption rights, classification as listed building,…).
Substantial town planning information can only be requested by holders of a right in rem who intend to sell or lease the property for more than 9 years or to establish a building right or a long term lease right thereon. Its content has been lightened. In addition to the applicable regulatory provisions, the municipality also communicates (i) the date, scope and handling of any infringement notices related to the property and (ii) the date and title of the permits, certificates and authorisations deemed relevant by the municipality. The latter is no longer obliged to provide information about all permits applicable to the property and about the use of each component of the property.
From now on, any request for substantial town planning information has to contain a factual description of the property, with the following elements: (i) address and cadastral information of the property, (ii) characteristics of the roof and the facades visible from the public space, (iii) destination or use of the property or part of the property, (iv) number and repartition of housing units and (v) number of parking spaces. A plan is also required if the factual description cannot properly outline the situation. Such factual description allows the municipality to compare the “factual” and the “legal” situation of the property and to inform the owner of any discrepancy.
The town planning information is delivered against the payment of a lump sum of 80 EUR (160 EUR for urgent procedures), to be adapted each year in accordance with the consumption index. As a comparison, before the reform, the Brussels municipalities required between 49,50 EUR and 250 EUR, up to 450 EUR in case of urgent procedure. The municipalities are no longer entitled to determine the amount of the fee. It should be noted that all the Brussels municipalities do not already comply with the new town planning regime, i.e. by not using the new forms available since 3 May 2018 or by still applying higher prices.
The town planning information shall be delivered within 30 days or, since the new Ordinance, within 5 days in case of urgent requests. These deadlines remain not compulsory. One can regret that the new Ordinance has not followed the new Walloon Territorial Development Code that allows a notarial deed to be signed without town planning information.
By modifying the planning provisions (planification/planologie), the new Ordinance aims to harmonise and simplify the procedures by taking into account the specificities of each situation.
Due to its limited success, the municipalities are no longer obliged to adopt a municipal development plan (gemeentelijk ontwikkelingsplan/plan communal de development). The master development plan (richtplan van aanleg / plan d’aménagement directeur) is created and aims to describe the most important (re)development principles applicable to the land areas that the Government wants to develop. The plan has a general indicative value, with the exception of some provisions. The provisions with regulatory value repeal the conflicting provisions of the zoning plans and planning regulations. Pursuant to eight decrees of the Brussels Government of 8 May 2018 – published in the Belgian Official Gazette on 14 May 2018 and in force since 15 May 2018, the opening procedure of eight master development plans has begun; it concerns the areas Bordet, Gare Bruxelles-Midi, Delta/Herrmann-Debroux, Anciennes Caserne d’Ixelles, Heyvaert, Josaphat, Mediapark, Porte de Ninove and Gare de l’Ouest. An information and participation process with the public will start soon.
In addition, the new Ordinance softens the specific zoning plan (bijzonder bestemmingsplan/plan particulier d'affectation du sol) and simplifies the procedures for approval and modifications. The content is now limited to the current factual and legal situation, permitted use and related requirements. This should encourage the municipalities to modernise the old specific zoning plans and to adopt new ones. The specific zoning plan becomes exclusively a municipal tool and the regional government is no longer entitled to impose a specific zoning plan to a municipality.
Urban Planning Regulations
The new Ordinance also modifies the urban planning regulations (règlements d’urbanisme/ stedenbouwkundige verordeningen). From now on, urban planning regulations can contain provisions related to the preservation and upgrading of heritage. In addition, the adoption, modification and abolition of urban planning regulations are now subject to an environmental impact study.
The Brussels Region is also obliged to adopt a new regional urban planning regulation (règlement régional d’urbanisme/gewestelijke stedenbouwkundige verordening) which will repeal the 16 general municipal urban planning regulations (règlements communaux d’urbanisme/gemeentelijke stedenbouwkundige verordeningen) adopted before 3 January 2007 (i.e. entry into force of the current regional urban planning regulation). The municipalities are still entitled to adopt specific urban planning regulation.
Finally, confirming the case law of the Council of State, the new Ordinance states that the subdivision permit (permis de lotir/verkavelingsvergunning) takes precedence over the urban planning regulation.
Julien LeclerCounsel Attorney at Law
Julien Lecler is a member of the Real Estate and the Public and Administrative Law Practice Groups in Belgium. He is a counsel in our Brussels office with a broad practice of counselling in all aspects of real estate law.T: +32 2 773 23 59 E: firstname.lastname@example.org