Integration of planning-EIA in the planning process not in violation with the Constitution

on Feb 9, 2018 in News

On 7 February 2018, the Constitutional Court, in its judgment with n° 13/2018, ruled on the request for partial annulment, as filed on 22 November 2016, against the Flemish Decree of 1 July 2016 amending the legislation on spatial plans in order to integrate the planning environmental impact assessment (“EIA”) and other impact assessment in the planning process.

This integration enables the administration to draft a planning-EIA while being in the process of drafting the actual Spatial Execution Plan.

The request was brought before the Court by several non-profit organisations and individuals. The applicants raised grievances based on the Aarhus Convention, which guarantees the access to information and participation in environmental matters.

Applicants believed that the use of the concept “significant environmental impact” would be an improper restriction of the evaluation of the planning-EIA. The administration would be able to limit itself to list only the significant impact. According to the applicants the administration should however, first list all impacts, and should subsequently evaluate each and every impact on its significance.

The Court dismisses the complaint because of a ratione temporis inadmissibility. The Court states that the concept of a “significant impact” is not introduced with the disputed Decree, but already existed in the earlier legislation.

The Court furthermore dismisses the second, fourth, fifth and sixth complaints for the same reasons. The third complaint, which was found admissible, was dismissed as unfounded.

The third complaint was based on the fact that the preliminary design of the Spatial Execution Plan does not require publication, whereas the starting, scoping and process memoranda and the design of the Spatial Execution Plan do require publication. The Court rules that this does not constitute a discrimination, as the public has the possibility to make certain claims or remarks with regard to the design itself.

The Court ultimately dismisses the request for (partial) annulment and the contested Decree passed the constitutional review with flying colours.

For more information, please contact Els Empereur.