On April 3, 2019, GABRIËLS & CO l.c. requested an environmental permit to build and exploit a new gas station in Boechout, a municipality of Belgium located in the Flemish province of Antwerp. The process for obtaining such a permit includes a public inquiry, during which 51 objections to the project were raised. The municipal authority refused to deliver the permit to the requesting company on the basis of the fact that the envisaged gas station was not “future proof” in that it did not include a recharge point for electric cars nor did it provide for compressed natural gas.
In the meantime, the local authorities of Boechout adopted a “2020 charter” to become a climate neutral municipality, following which they established a climate action program. According to this program, enterprises with an establishment in Boechout need to contribute toward this goal; the project of GABRIËLS & CO, on the contrary, violates the action program.
GABRIËLS & CO l.c. started a procedure in appeal again the refusal decision. Once more, the local authorities rendered a negative decision, confirming their standpoint. Similarly, the provincial environment officer gave a negative advice for the project. However, the provincial government, on appeal, eventually decided that the project should receive an environmental permit on the ground that the reason used by the local authorities to refuse to deliver the permit is illegal.
After the permit was delivered, prospective neighbors of the envisioned gas station sought to suspend and annul the environmental permit before the Council for Permit Disputes, a special administrative tribunal under Belgian law.
In the course of the suspension procedure, the Council found that Art. 4.3.4 of the Flemish Code for Spatial Planning is an optional ground for refusal for projects that are not compatible with the objectives and duties of care of the local authority concerned. The Council decided that the environmental permit was not carefully motivated because there was no research on whether the project would be compatible with the environmental objectives of the community of Boechout or whether mitigating measures would be sufficient to compensate the negative advice of the community of Boechout. On this ground, the Council suspended the decision of the provincial government on April 22, 2021.
In the primary procedure, which sought to annul the permit, the Council found on December 9, 2022, that there was insufficient justification with regard to the gas station’s compatibility with the residential area in which it was to be built and with its immediate surroundings; such compatibility is an important component of “good spatial planning,” and, as such, suffices as a ground to refuse to deliver an environmental permit. (As is common practice in Belgian law, the Council only discussed this plea, which is in itself was sufficient to annul the decision to deliver the permit, and ignored the other arguments of the plaintiffs.)
This case is indicative of the growing tendency under (Flemish) Belgian environmental law to assess environmental permit requests in light of climate objectives such as climate neutrality. Such assessment is mandated on the part of local authorities in the context of their general duty to practice “good spatial planning.”