The Contested Permit
In 2023, the city of Bruges grants a building permit to a developer for a 10-story apartment building in a historic district. The permit is issued by the municipal council without a public inquiry, despite a regional urban planning regulation requiring a public inquiry for buildings exceeding 8 stories. A local residents' association, 'Bruges Heritage', files an appeal with the Regional Planning Appeals Board (Raad voor Vergunningsbetwistingen) in June 2023. The Board is a regional administrative court. In September 2023, the Board annuls the permit because of the missing public inquiry. The developer argues that the annulment violates its right to property under Article 1 of Protocol 1 to the ECHR and that the Board should have suspended the annulment to allow regularization. The residents' association argues that the annulment is correct and that the developer should have known the regulation. The developer also claims that the Board's decision is not subject to appeal before the Council of State (Raad van State) because the Board is an administrative court, not a civil court.
1. Was the annulment of the permit justified? Discuss the requirement of public inquiry and the consequences of non-compliance.
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The annulment was justified. The regional urban planning regulation requires a public inquiry for buildings exceeding 8 stories. The developer's building has 10 stories, so the public inquiry was mandatory. The municipal council's failure to hold one is a substantive procedural defect that affects the rights of residents to participate. Under the Flemish Code on Spatial Planning (VCRO), such a defect renders the permit illegal. The Board correctly annulled it. The developer's argument that it should have been allowed to regularize is weak: Belgian administrative law does not generally allow post hoc regularization for mandatory public inquiries; the procedure must be followed before the permit is granted. The ECHR property right is not absolute and can be restricted in the public interest, including planning rules. Therefore, the annulment stands.
2. Is the Board's decision subject to appeal before the Council of State? Discuss the judicial organization and the possibility of cassation.
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The Board's decision is subject to appeal before the Council of State, but only on points of law (cassation), not on facts. The Regional Planning Appeals Board is an administrative court, but the Council of State is the supreme administrative court and has jurisdiction to review its decisions for legality. Under Article 14 of the Coordinated Laws on the Council of State, an appeal in cassation is possible against decisions of administrative courts. The developer's claim that no appeal is possible is incorrect. However, the appeal must be filed within 30 days and can only raise legal errors, not re-evaluate evidence. The developer could argue that the Board misinterpreted the regulation, but the facts (10 stories, no inquiry) are clear. Thus, an appeal is possible but unlikely to succeed.