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Investors setting up a business in Flanders need to obtain the necessary permits and ensure compliance with environmental law.
Environmental regulation in Belgium is primarily the responsibility of each region, although the Federal Government does retain authority over certain areas such as product standards, waste shipments, protection of the marine environment and ionizing radiation.
It is important to know that the Flemish Regional Government and the Belgian Federal Government must comply with EU regulations and standards on this subject.
This section provides a general outline of regulations in the Flemish Region including environmental permits, building permits, soil restoration and the disposal of packaging waste.
Environmental Permits
What activities require environmental permits?
A permit is required for a number of specified activities.
There is a distinction depending on how the activity affects the environment.
- Category I
This category includes truly hazardous activities such as the production of pesticides. For these activities you must obtain a permit from the provincial authorities. After an approval procedure involving advice from several specialist government agencies, the municipal authorities of the operation site will decide if, and under what conditions, the permit can be authorized. The approval procedure does involve a prior investigation of the environmental effects of the activity.
- Category II
This category includes activities that are deemed more harmful to the environment. For these activities a permit must be obtained prior to the start of operations.
The approval procedure is similar to that for category I activities.
Example:
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Abattoirs and privately-owned slaughterhouses for poultry and rabbits that can handle 100 to 1,000 animals a day.
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Storage facilities for liquids with a flash point above 100°C, except those meant for seaport areas and ports with a holding capacity of over 50,000 litres up to 5,000,000 litres.
- Category III
This category includes activities deemed to have "limited" effects on the environment. Such activities require only prior notification to the municipal authorities of the site where the activities will be carried out.
Example:
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Storage facilities for textile goods with a capacity of over 10 tonnes.
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Storage facilities for liquids with a flash point above 100°C, except those meant for seaport areas and ports with a holding capacity of over 200 litres up to 50,000 litres.
What is the approval procedure?
The approval procedure contains an assessment of the potential impact on the environment such as noise, air and water pollution, waste disposal and prevention of major accidents.
Strict time limits are set for the different steps of the approval procedure. A similar or simplified procedure must be followed should you wish to change already permitted activities.
Obtaining Environmental Permits
- Category I
What is a Category I environmental permit?
A Category I permit determines:
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The specific operating conditions;
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The period of validity (up to 20 years);
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The period of time in which the activities will be started (maximum of three years).
How is the permit obtained?
Obtaining a Category I permit involves the following seven stages:
The applicant files a request for an environmental permit with the provincial authorities.
Important: For certain listed categories of activities the request needs to be accompanied by an environmental impact assessment or a "safety report", which can take at least two months.
The applicant receives notification that the request is accepted and complete.
Note: This notification starts the approval procedure.
The provincial authorities decide whether the permit is granted.
The absence of a decision within the required time limit equals a negative decision.
Important: An extension of two months is possible.
- Category II
What is a Category II environmental permit?
A Category II permit determines:
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The specific operating conditions;
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The period of validity (up to 20 years);
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The period of time in which the activities will be started (maximum of three years).
How is the permit obtained?
Obtaining a Category II permit involves the following seven stages:
The applicant files a request for an environmental permit with the municipal authorities.
The applicant receives notification that the request is accepted and complete.
Note: This notification starts the approval procedure.
The provincial authorities decide whether the permit is granted.
The absence of a decision within the required time limit equals a negative decision.
Important: An extension of one and a half months is possible.
The decision is published.
All interested parties can file an appeal with the provincial authorities.
- Category III
This procedure is limited to notification of the intended activities to the municipal authorities prior to the start of the activities.
Where can the operating conditions be found?
The operating conditions can be found at http://www.emis.vito.be/wet_ENG_navigator/vlarem2.htm
Building Permits
What is a building permit and when is it needed?
Most construction, reconstruction, demolition and renovation works relating to buildings require a building permit. This is also true for building parking lots or cutting down trees. Minor changes to existing buildings and minor construction projects are generally exempt.
If the proposed activity also requires an environmental permit (or the reporting of it), the validity of the building permit will be suspended until an environmental permit has been obtained or the activity has been reported. The opposite is also true.
The official name of a building permit in Dutch is "stedenbouwkundige vergunning", but it is also known as a "bouwvergunning". You must apply for the building permit at the city or town hall of your investment location. Because this is a rather complex matter, the application will best be compiled by the architect.
What is the procedure for obtaining a building permit?
1. At city/town level:
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You get an immediate written reply at the office window if you hand over your application at the city or town hall. For applications submitted by recorded delivery, you will be sent an acknowledgement 5 days after its receipt.
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If necessary, a public enquiry will be held, as well as the gathering of advice from other public authorities.
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The mayor and aldermen will consider the request and decide within 75 days. Appeals can be lodged against the judgment with the Provincial Council of Deputies (bestendige deputatie).
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A reply must be issued within 75 days after the application, or a maximum of 105 days if a public enquiry is necessary.
2. At provincial level (appeal level):
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Within 30 days after receiving the judgment you have the right to lodge an appeal with the Provincial Council of Deputies (bestendige deputatie), after which you will receive a reply within 60 days (75 days if a hearing is needed).
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If the license is approved and the Flemish Government does not suspend it within 20 days, the license can be used.
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If there is no answer within 75 days then the city decision remains valid, or there is the possibility of a reminder by the applicant. If there is no answer to the reminder within 35 days then the license is approved, providing there is no suspension by the Flemish Government within 20 days.
3. At the Flanders Regional level (control level):
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o If the suspension is not honored you can lodge an appeal with the Flanders Region Government, Koning Albert II laan 19 bus 10, 1210 Brussel. The Minister will reply within 60 days (75 days if a hearing is needed).
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The suspension must be confirmed by the Government of Flanders within 40 days of the announcement of the suspension.
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If there is no answer from the Flemish Government after 40 days the license can be used.
Assistance
1. The Urban Development Statement 1 (stedenbouwkundig uittreksel):
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This provides information on the planning and license status/history of the plot of land.
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To obtain it, apply at the City/Town Hall of the investment location.
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In cases involving the sale of land/building this is provided by the notary to the buyer. In other cases it is not compulsory but is highly recommended.
2. Urban Development Statement 2:
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Provides advice about the possibility of receiving a building permit.
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To obtain it, apply at the City/Town Hall of the investment location.
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A positive answer is valid for a period of six months.
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Useful in saving unnecessary costs involved in the application for a building permit.
It is not compulsory but is highly recommended.
Soil Remediation
What are the regulations relating to polluted soil?
The main objectives of the Decree on Soil Restoration and Soil Protection of 27 October 2006 are the prevention of new pollution and the restoration of historical pollution.
Based on the Soil Restoration Decree of 1995, the new decree further develops its guidelines.
Its key points are:
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The adjustment and refinement of a number of existing guidelines;
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The simplification, refinement and clarification of existing procedures and terms;
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A number of new guidelines.
In the Flemish Regulations on Soil Restoration (Vlarebo for short) approved on 14 December 2007 and published on 22 April 2008 [erratum published on 19 May 2008], the Flemish Region now has new and comprehensive soil legislation. The new soil legislation came fully into force on 1 June 2008. Vlarebo implements the provisions of the soil decree.
When should the soil be cleaned?
Soil restoration is required if:
Who is responsible for the clean-up?
A graduated system is used to determine which party is required to restore the land. In the first instance the operator must proceed with a detailed soil survey and soil restoration.
In the absence of an operator (or should the operator be unaccountable), the user (lessee, usufructuary, party with building rights etc) is accountable.
But what happens if there is no user or the user meets the exemption conditions? In this case the clean-up obligation ultimately rests with the owner. If the owner also demonstrates that he meets the exemption conditions, the OVAM can act ex-officio and recover the costs from the liable party.
What is the procedure for soil remediation?
The soil decree divides the procedure into two stages:
1. The exploratory and detailed soil survey.
2. The soil restoration
The exploratory soil survey determines if there are clear indications of soil contamination. The detailed soil survey determines if soil restoration work is required at the location. If this is the case then the actual soil restoration process begins (phase two). Under this process the soil contamination is dealt with on a step by step basis. The party required to restore the land must then:
1. Draw up a soil restoration project;
2. Carry out soil restoration work;
3. Ensure follow-up.
These steps must be carried out by an accredited soil restoration expert and on the basis of our standard procedures.
What is the register of polluted soils?
The OVAM manages a Land Information Register in which information about the soil quality of land in Flanders is recorded. The last decree made reference to the register of polluted soils. This term has now been replaced by a broader and more accurate term: the Land Information Register (Grondeninformatieregister). The fact that a specific piece of land is recorded in this register does not mean per se that the land is polluted or that clean-up is required.
What happens if property ownership is transferred?
In Flanders no land may be transferred without a soil certificate.
In principle, and as mentioned, as the buyer you have to do nothing. The seller of the land must apply to the OVAM for the soil certificate (usually having this done by a public notary).
A soil certificate contains all information known by the OVAM about a certain piece of land. All the parties are then fully aware of the situation.
Is the land you are transferring non risk-entailing land? Ask the OVAM for a soil certificate per cadastral parcel. Do this before you conclude the transfer agreement. You can obtain the application form from your local authority, a public notary or from the www.ovam.be web site. You will receive the certificate within a month of application.
Are you transferring risk-entailing land? You can inform the OVAM of this using the standard notification form for transfers. You appoint an accredited land restoration expert who carries out a compulsory exploratory soil survey. You report the results to the OVAM. You also request a soil certificate. You will receive a reply from the OVAM within two months.
What is OVAM?
OVAM is the competent authority for soil remediation.
Packaging Waste
What are the requirements regarding packaging waste?
A take-back obligation was introduced in 1997. This requirement stipulates that certain percentages of packaging waste must be recycled and recovered. (Recovery = recycling + energy recovery.)
Can recovery and recycling be delegated?
The company can either take back and recover/recycle its own packaging (in most cases with the help of a licensed waste treatment company), or it can delegate this to accredited organizations:
The principal advantage in delegating this obligation is that the accredited organization is more likely to meet the recycling and re-use quota than an individual company (largely because of economies of scale).
What happens if a company fails to meet its obligations?
If a company fails to meet the legal recovery quota it can be punished by law (imprisonment and fines).
Where can more information be found?
More information concerning packaging waste can be found at www.ivcie.be and at www.ovam.be. The sites of the accredited organizations are also interesting: www.fostplus.be and www.valipac.be.
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