Does a regularization permit expire?

BuyerSide recently advised a client in the context of the acquisition of a building suitable for letting. A town planning permit had been issued for this building in 2014, granting authorisation for the three housing units to be brought into line with the regulations and for a few modifications to be made to the interior. However, these were not carried out.

The question was whether or not the three housing units had been acquired, given that the town planning permit expired three years after it was issued, that is on 1 September 2019. Before that date, the expiry took effect within a period of two years, renewable for one year (former Article 101 of the CoBAT- Brussels Spatial Planning Code).

A building suitable for letting initially occupied as a single-family home

The building had initially been occupied as a single-family home, then briefly as three apartments and finally as several student digs and studios.

A regularisation permit expired and not fully implemented

The town planning information on the building indicates three apartments (note that town planning particulars are provided for information purposes only) and the regularisation permit dating from 2014.
Consequently, with the assistance of Gilles Delacroix and Eric Pascal Rwamucyo of d-sight, a firm that provides legal support for real-estate projects, we looked into the issue of an expired regularisation permit that had not actually been fully implemented.Former Article 101. The former Article 101 of the CoBAT stipulated that: “§ 1. The permit expires if, within two years of being issued, the beneficiary has not started to implement it to a significant degree or, in the cases referred to by Article 98, § 1er, 1°, 2° and 4°, if he has not started work on erecting the main structure or if he has not, as the case may be, implemented the charges imposed in application of Article 100.
An interruption of the work lasting more than one year also leads to the expiry of the permit.
(…)
§ 2. However, at the request of the beneficiary, the two-year period referred to in paragraph 1 can be extended for a period of one year.
(…)
§ 6. – §§ 1 and 2 do not apply to permits issued further to an application submitted to put an end to a breach referred to in Article 300”.

Expiry of town planning permit and reform of the CoBAT

In other words, the former Article 101 stipulated that a town planning permit issued before the entry into force of the CoBAT reform expired if you did not begin implementing this permit to a significant degree within two years of its issue. Nevertheless, this principle is qualified by an exception: the regularisation permit implemented in time or at the moment when this regularisation permit is issued. The assumption is that the acts and work authorised by the regularisation permit were already implemented when the permit was issued .

Partial expiry of the permit

In this system, one question was left unresolved: how should acts and work carried out before the permit expired be treated when the holder has not implemented his permit in full or when the acts and work are necessary in order to comply with the regularisation? This comes down to wondering whether the expiry is global and also affects the acts and work carried out previously, which were therefore in principle compliant. Or if it can be partial, and consequently only affect the part of the acts and work not yet carried out? 
Questioned about this thorny issue on several occasions, the Council of State has admitted that the expiry only affects the remaining part of the town planning permit that has not yet been implemented. To this end, the High Administrative Court took into account the divisibility of the object of the town planning permit – or more precisely, its ‘splittable’ nature” .
However, when the regularisation permit authorises acts and works in addition to those regularised, the rules on expiry have to apply to both this ‘addition’ and to the regularisation .
Moreover, this system was selected in the reform of the new Article 101, which can be summarised as follows: the expiry does not take effect when “the part carried out can be considered to be an autonomous element, assessed and authorised as such by the issuing authority “, in which case only the part of the permit not carried out has expired.

Regularisation and application for acts and work to be carried out

The 2014 permit concerned a regularisation and an application for acts and work to be carried out.
The regularisation related to the transformation of the single-family house into three housing units and the permit application to interior conversion work that could be considered to be ‘splittable’ from the division. 

Division acquired but permit application to be resubmitted for the work

To sum up, the division as a ‘splittable’ element of the 2014 permit has been obtained . However, given that the interior work was not carried out, the part of the permit relating to this work has expired.
If the client wishes to carry out the interior work planned in 2014, he will therefore need to submit another permit application. 

[1] Council of State, Benayer judgement, No 75.999 of 29 September 1998; Council of State, Craessaerts judgement, No 29.407 of 25 February 1988.
[2] L. DELMOTTE, “The expiry of town planning permits: the case of partial implementation of acts subject to a permit in the Brussels Capital Region and in the Walloon Region”, J.L.M.B., 2011/30, p. 1468; see references quoted here
[3] Council of State, Bacquet judgement, No 207.498 of 21 September 2010, J.L.M.B., 2011, p. 1462, and obs. L. DELMOTTE; 
[4] Gors, B. and Vansnick, L., “Considerations on the expiry of town planning permits” in Born, Ch.-H. and Jongen, F. (dir.), Town planning and environment, 1st edition, Brussels, Bruylant, 2015, p. 175-207.
[5] It should be noted that the legal use of the property as several studios / student digs is unlawful but does not call into question the legal situation of the property (building comprising three apartments).

 

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