The Neighbour's Wall and the Missing Permit
Mr. and Mrs. V. own a terraced house in Ghent. In March their neighbour, Mr. K., builds a garden wall 2.4 metres high along the shared boundary, replacing a 1.5-metre hedge. The wall blocks afternoon light to the V. kitchen window, which sits 1.8 metres from the boundary. Mr. K. did not apply for a planning permit; he says the wall is 'a private matter between neighbours.' The V. family also discover that Mr. K. dug a foundation trench that slightly undermined the base of their own boundary wall, causing a visible crack. The V. family want the wall lowered and the crack repaired. They have not yet contacted the municipality. A notarial deed from 1978 mentions a 'servitude of light' in favour of the V. property.
1. Which legal routes are open to the V. family, and how do public-law (planning) and private-law (neighbourhood) claims interact?
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Two tracks run in parallel and must not be confused.
Public law. A 2.4-metre wall may require a planning permit depending on the applicable spatial implementation plan and the Flemish planning code's exemption thresholds. The V. family should ask the municipality whether a permit was needed. If it was, they can request enforcement (a regularisation or herstel procedure) by the competent authority; they cannot themselves order demolition. They may also use the administrative route to challenge any later permit.
Private law. Independently of planning, the V. family have civil claims:
- Servitude of light. The 1978 notarial deed may establish a contractual or conventional servitude. A servitude of light limits the neighbour's building height in favour of the dominant tenement. The deed must be examined: is it a true servitude, recorded and opposable to Mr. K.? If so, the wall's height may breach it.
- Abuse of rights / abnormal neighbourhood disturbance. Even without a servitude, Belgian courts sanction excessive neighbourhood nuisance. A wall that blocks light to a kitchen may or may not cross the threshold; courts weigh the age of the neighbourhood, the utility of the work, and the harm.
- Damage to the boundary wall. The undermined foundation and the crack give a claim in tort (Article 1382 old Civil Code / the new Book 6). The V. family can seek repair and damages.
Interaction. A planning permit does not authorise a civil wrong, and the absence of a permit does not automatically prove civil liability. The civil judge can order the wall lowered or the crack repaired regardless of the planning outcome; the administrative authority's decision does not bind the civil judge on private rights.
2. Draft the structure of the claim the V. family's lawyer should file, indicating the competent court and the relief sought.
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Competent court. The justice of the peace has jurisdiction for certain neighbourhood and possession disputes up to a statutory amount; for claims exceeding that amount or involving servitudes and damages, the court of first instance (family and civil division) of the judicial district is competent. Given the combined value of the works and damages, the court of first instance is the safer forum; the lawyer should check the current threshold.
Structure of the claim.
- Parties. Mr. and Mrs. V. as applicants; Mr. K. as respondent. Identify the properties by cadastral and deed references.
- Facts. March construction, height change from 1.5 m to 2.4 m, distance of 1.8 m from the window, the trench, the crack, the absence of a permit.
- Legal grounds.
- Breach of the 1978 servitude of light (produce the deed, establish opposability).
- Subsidiarily, abnormal neighbourhood disturbance and abuse of rights.
- Tort liability for the undermining of the boundary wall (Book 6 of the Civil Code; former Article 1382).
- Relief sought.
- Order to reduce the wall to a compliant height, under penalty (astreinte).
- Order to repair the boundary wall and the crack, under penalty.
- Damages for loss of light and inconvenience, quantified provisionally.
- Appointment of an expert if the technical cause of the crack is disputed.
- Procedure. Attempt prior amicable settlement; file the summons; consider a request for an expert survey and, if urgent, a référé-style interim application before the president of the court.
- Evidence. Photographs, deed, expert report, municipal correspondence on the permit question.