1. What kind of regulation or case law exists in your country when a polluted site must be decontaminated, and the owner (who to simplify matters is also the author of the pollution) is bankrupt and unable to pay for the clean up?
In Belgium, protection of the environment falls within the jurisdiction of the Regions, not (with a few exceptions not relevant for this topic) of the Federal State.
Each of the three Regions (Flanders, Wallonia and Brussels) has its own legislation.
In the Flemish Region, the matter is regulated by the Regional Act (“decreet”) of October 27, 2006 concerning the protection and decontamination of the soil, and by the regulation of the Flemish Government of December 12, 2007.
This legislation replaces the former Regional Act of February 22, 1995, and has entered into force on June 1, 2008.
The legislation makes a distinction between the persons (which also includes corporations) who have an obligation to clean up polluted soils, and persons who are liable for the costs of the clean up.
The following persons are obliged to clean up polluted soils:
– the person who exploits an installation on the soil, installation for which a permit has been granted
– if there is no such person, or such person is exempted from this obligation, the person who uses the soil
– if there are no persons from the former categories, or if they are exempted, the owner of the soil.
Under certain conditions, those persons are not obliged to clean up the polluted soils.
The person who caused the pollution, is liable for the costs of the clean up.
If the person who caused the pollution is unknown or not able to pay the costs, (which includes the person who must clean up the soil if he has caused it), articles 14 and 15 of the Act provide for a “bearability” regulation and for a co-financing by the Flemish Region.
If the person who must clean up the soil is not able to bear all the costs, he can apply to the government for a bearability regulation, which aims at spreading the costs in the time.
There is also the possibility of co-financing by the government. The government decides if it will co-finance the clean up, and the percentage of the costs it will bear.
Since in the case that has been proposed, the corporation who caused the pollution is bankrupt and unable to pay the costs of the clean up, it (or the receiver) can apply to the government for one or both of the remedies provided by articles 14 an 15 of the Act.
The Flemish Waste Agency (Openbare Vlaamse Afvalstoffenmaatschappij – OVAM-) can also clean up soils on its own initiative, and (try to) recuperate the costs from the persons who caused the pollution (articles 156 ss. of the Act).
To answer the first question:
– if the bankrupt corporation, which must clean up the polluted soils, is able to bear part, but not all the costs of the clean up, it (or its receiver) can apply for a co-financing of the costs by the Flemish government;
– if it has no financial means at all, or just does nothing at all, the Flemish Waste Agency can clean up the soil on its own initiative.
– If the city acquires the polluted soils from the bankrupt corporation, and it can not convince the Flemish Waste Agency to clean up the soils, it will have to do so itself, since the Act forbids (in principle, there are a few exceptions) the transfer of polluted soils.
2. Is the new plan/development and environmental impact assessment an easy or difficult procedure? Does it require a lot of time? Is it expensive?
Zoning and building permits are regulated by the Regional Act of May 18, 1999.
Assuming that the city of Amberes has already an approved zoning scheme (‘ruimtelijk structuurplan’) and that this scheme allows for industrial activities in the area that is still zoned as agricultural, it can adopt a zoning plan (‘ruimtelijk uitvoeringsplan’) in conformity with the scheme. This procedure is in itself not to difficult, and is described in articles 48-53 of this Act:
– the municipal executive board (mayor and aldermen) makes a draft plan which is then submitted for advice to a number of authorities and agencies, who then come together in a so called “plenary meeting” not earlier than 21 days after the draft has been sent to this authorities and agencies. The results of the meeting are not binding on the municipality, but in most cases the municipality will take them into account;
– the municipal council adopts the “provisional plan”, which is then submitted to a public inquiry lasting 60 days. The municipal zoning commission then examines the complaints and remarks formulated by the public during the inquiry, as well as information provided by the provincial and regional authorities as to the conformity of the draft plan with the provincial and regional plans. The commission gives it advice on all those points within 90 days after the end of the public inquiry.
– the municipal council then adopts the final plan within 180 days after the end of the public inquiry
– the plan is then submitted to the provincial executive board for approval. This board decides within 60 days.
– the plan becomes effective 14 days after the decision of the provincial executive board has been published in the Belgian official gazette (‘Belgisch Staatsblad’)
If however the zoning scheme does not allow for industrial activities in the area that is now zoned as agricultural, the city must first modify its zoning scheme, and once this has been approved, it can adopt a zoning plan. It is evident that this will require more time. The procedure for the modification of the zoning scheme is described in the articles 31- 35 of the Act:
– the municipal executive board makes a draft scheme, which is submitted for advice to the municipal zoning commission;
– the municipals council adopts the provisional scheme;
– the provisional scheme is then submitted to a public inquiry lasting 90 days;
– the municipal zoning commission gives its advice on the complaints and remarks formulated by the public during the public inquiry, within 120 days after the start of the public inquiry;
– the municipal council adopts the final scheme within 210 days after the start of the public inquiry;
– the scheme is then sent for approval to the provincial executive board (when there is a provincial zoning scheme) or to the Flemish government (when there is no provincial zoning scheme). The provincial board decides within 60 days. In the absence of a timely decision, the municipal board can put the provincial board on notice, and if no decision is then made within 20 days, the municipality then submits the scheme to the government, which decides within 60 days;
– the decision to approve the scheme is then published in the Belgian official gazette, and the scheme becomes effective 14 days after publication.
Environmental impact assessment for plans is regulated by the regulation of the Flemish government of October 12, 2007 concerning the environmental impact assessment of plans and programs (‘Besluit van de Vlaamse Regering betreffende de milieueffectrapportage over plannen en programma’s’), which has been further implemented by a guideline dated December 3, 2007.
The environmental impact report must be drafted by a person or persons accredited by the government. Since the zoning plan or scheme must already be submitted to a public inquiry by virtue of the regional Zoning Act, the environmental impact report is submitted at the same time to the same public inquiry.
The costs of making a zoning plan or scheme, and an environmental impact report are quite important. Most municipalities conclude contracts with specialized consultants who draft the plans and schemes, and assist the municipality in the course of the procedure.
Costs vary, of course, but 25.000 euro is a minimum.
The same is true for the environmental impact report.
3. Who has a legal standing to bring challenges to zoning decisions? At which stage of the zoning procedures can those challenges be brought? What is in general the scope of judicial review, and what remedies can be ordered? If the court finds a zoning process or decision illegal, can in nevertheless let it stand and allow only for damages to be paid?
3.1 In general
Courts and legal procedures are (with a very few exceptions) a matter for the federal State, not for the Regions.
In cases like this one, there are two avenues for litigating decisions concerning zoning and building.
A request in annulment of decisions made by public authorities can be brought before the Council of State, the highest administrative court.
In cases where a “civil right” is at stake, a case can be brought before the civil courts, not only against public authortities, but also against private parties.
3.2 The Council of State
Any person (or corporation) who is aggrieved by a decision made by a public authority, can ask the Council of State to annul that decision, by request filed within 60 days after he got knowledge of the decision.
The petitioner must not demonstrate that one or more of his rights are threatened by the decision, a (legal) interest is enough. In zoning cases, the Council of State accepts that persons living within a radius of a few hundred meters of the property that is the object of the decision, have the required interest. Not for profit corporations have also the required interest, provided (1) that their statutory goals are threatened (e.g. the protection of the environment, and (2) they are active in the area concerned.
The Council of State examines (1) whether the facts on which the decision is based, are correct, relevant and complete, (2) whether the decision respects the rules and regulations, and (3) does not violate the principles of good administration, and (4) is not manifestly unreasonable.
The Council of State can only annul the administrative decision or reject the request. It cannot award damages.
3.2 The civil courts
Any person who claims that the decision of a public authority, or the execution thereof, threatens or infringes one or more of his civil rights, can sue the public authority or the person benefitting from that decision before the civil court.
A civil right exists when a person (with the inclusion of the public authorities) is bound by law to adopt a specific attitude against another person: that person has a “right” that this attitude be adopted. Courts tend to adopt a broad view of such rights, such as a right for an owner that his unobstructed view be not taken away by an illegal construction.
They can find the decision illegal, on the same grounds as the Council of State.
Courts can order any measure to correct the illegality, like the demolition of buildings. They can also award damages. They cannot, however, order the public authority to take a specific new decision instead of the illegal decision, when in taking this decision the public authority exercises a discretionary power.
Marc Boes, Belgium