Navigating urban planning regularisation in the Brussels-Capital Region – An overview of the procedures at hand

1. Regularisation by operation of law

An exhaustive list of works subject to urban planning permits are outlined in Article 98, §1 of the Brussels Urban Planning Code (in Dutch, het Brussels Wetboek Ruimtelijke Ordening or BWRO, and in French, le Code Bruxellois de l’Aménagement du Territoire or CoBAT), for example:

• construction;

• alterations to existing constructions;

• demolition or reconstruction;

• modification, even without works, of the destination or use of a property;

• a change to the number of dwellings of an existing construction. 

Exemptions from the requirement for urban planning permits are delineated in Article 98, §2 of the BWRO – CoBAT and the ‘exemption decree’ of 13 November 2008.

Article 300 of the BWRO – CoBAT determines what type of action constitutes an infringement, for example : violations of permits, unauthorised actions or works and expired permits. Of course, the general principles of non-retroactivity of criminal law and the application of the most favourable criminal law will be observed. This means that there’s a specific  procedure for works that were not subject to an urban planning permit requirement at the time of execution but later became subject (as they were only in conflict with the newer regulation after the works had been carried out).

For this type of regularisation to take place, the infringement of urban planning regulation must have occurred before the infringement in question was established by law, leading to an illegal lasting situation or construction. In this type of regularisation procedure, the situation will be examined in light of the regulation at the time, and if no permit was required at the time, an application for urban planning regularisation will not be required and the situation will be regularised by operation of law (Council of State 11 July 2012, SA BBB n°220.281; Council of State 7 December 2010 SA Auto Sam, n°209.576; Council of State 10 May 2010, Schnell, n°203.840).

This mechanism is particularly interesting, as it constitutes an exception to the general principle that regularisation applications are always evaluated based on the current regulations. It is equally interesting to note that when proving that the works were not illegal at the time, any means of proof are in principle admissible.

3. Accelerated and simplified regularisation

The third and final category, accelerated and simplified urban planning regularisation, presents a swift solution for specific cases (Article 330, §3 of the BWRO – CoBAT). This procedure is applicable to transgressions following works executed without permits prior to 1 January 2000, subject to the following specific conditions:

• The works were conducted without the required permit;

• The works were executed in accordance with past or present regulations; 

• No environmental impact assessment was required at the time the works were carried out, and is still not required today;

• The works received a favourable assessment from the fire department (Decision of 18 October 2018).

If these cumulative conditions are met, then the permit must be granted. The advantages of this procedure are manifold. First, it’s a quick procedure as the person filing the permit application will receive an acknowledgement of receipt of a complete file within 45 days of its submission. Second, no administrative actions and no particular publicity measures are required, which speeds up the process. Finally, the Municipal Executive has no evaluative jurisdiction in this matter. This means that if the conditions are met, then a permit will automatically be issued within 45 days of the date of acknowledgement of receipt of a complete file.