We are pleased that the Constitutional Court overturned a decree amendment that made it more difficult for people to challenge a licence in court.
Those who have objections to the issuance of an environmental permit must present arguments. A decree stipulated that all objections had to be raised with the administration during the award procedure and not later. Those who raised objections later had nowhere to go with their comments when the administration completed the procedure. We felt it was unfair that people could then also no longer have their arguments assessed by a judge. We are satisfied that the Constitutional Court took the same view.
The decree denied people proper access to justice in certain cases, we are satisfied that the Constitutional Court came to the same conclusion.
What was it actually about: a concrete example
Suppose you learn that someone wants to build a four-storey apartment building next to your house and a public enquiry is launched. You are particularly concerned that the apartment building will cause you visual nuisance such as loss of sunlight in your garden and file a notice of objection. Nevertheless, the environmental permit is granted, and you are also proven wrong on appeal to the Permanent Deputation (the province). The administrative route to challenge that permit yielded nothing but you can still challenge it before a judge, which in Flanders is at the Council for Permit Disputes. You engage a lawyer.
While preparing these proceedings before the judge, your lawyer finds another argument to contest the permit. For example, it turns out that the mobility impact of the application was not examined at all.
Due to an amendment to the decree of 4 April 2014, which regulates the procedure before the Flemish administrative courts, the lawyer could not invoke that new argument in court since 24 June 2021.
Why couldn't you take your argument to court anymore?
Because it said in the amended decree that you possibly should have raised this argument (this illegality) earlier when you challenged the permit first with your municipality and later with the Deputation. If you did not, that was bad luck for you. That was how it stood in Article 35, paragraph 3, which was amended in the decree amendment.
This so-called duty of attention aimed to punish the citizen if he or she had apparently failed to invoke the alleged illegality earlier in the proceedings.
For a litigant (and his lawyer), this meant that they had to immediately put ALL possible arguments about illegality on the table as soon as they were confronted with an environmental permit that was contestable for them.
With this new provision, the Flemish government apparently wanted to ensure that fewer permits would be contested. We opposed these new rules.
Thus, if citizens did not raise an argument against an environmental permit during the procedure before the administrations, they could not later have that argument assessed by a judge," said Sofie Demeyer, spokesperson for Advocaat.be . "We are pleased that the Constitutional Court, like Advocaat.be, ruled that this is a threshold that makes access to justice more difficult.
The Constitutional Court rightly ruled that you cannot expect a citizen to always immediately notice when a government commits an illegality in complex, technical cases. On the other hand, you can expect a government to act act carefully and rectify an irregularity itself when it occurs."
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