Administrative Law: Hierarchy of Land Use Plans

BRUSSELS-CAPITAL REGION – TOWN-PLANNING – PLANNING HIERARCHY – RESTRICTION TO REGIONAL LAND USE PLANNING – PARTIAL ANNULMENT

 

 

The Council of State recently delivered an important ruling regarding planning hierarchy.

 

According to this principle, a land use plan of a lower hierarchical level must comply with the regional land use plan, ranking at a higher level.

 

On the one hand, when a land use plan of a lower hierarchical level is passed prior to the regional land use plan, the provisions which conflict with the regional land use plan are automatically repealed.

 

On the other hand, when a land use plan of a lower hierarchical level comes into force after the regional land use plan, it may supplement the latter. However, the land use plan of a lower level must not depart from the regional land use plan, except under the very stringent conditions laid down in article 42 of the COBAT.

 

In the present case, the provisions of a local land use plan (PPAS) enacted after the regional land use plan of May 3, 2001 abolished most strips for commercial areas that were provided for in this regional plan.

 

The Council of State ruled that the PPAS hampers the implementation of the class use provided for in the regional plan. It subsequently quashes the provisions which do not comply with this regional plan.

 

The ruling states that “the local land use plan (PPAS) does not entail a total deletion [of the regional land use plan] but is materially more restrictive”; and thereby does not only supplement the regional land use plan.

 

Nonetheless, as the illegal provisions could be easily separated from the other provisions of the local plan, only those illegal provisions were nullified.

Manuela von Kuegelgen
Lionel de Briey

March 2009