The environmental prohibitory injunction and the Janus face of the municipal interest
With her judgement 2016/60 of 28 April 2016, the Constitutional Court has further defined the range of the so-called environmental prohibitory injunction.
According to a reading of article 194 Flemish Municipal Decree and article 1 of the Law regarding the right of action concerning the environment, a municipal inhabitant can bring a claim on behalf of that municipality to protect the environment or to prevent a serious threat to the environment. The possible consequence of this claim is a prohibition order or an order to take protective measures on that environment. This environmental prohibitory injunction – as class action an exception in Belgian law – can even be brought by residents in relation to an environmental licence that is granted by the municipality itself. The only condition is the absence of an initiative of the concerned municipality.
The innovative aspect of the 28 April 2016 judgement is that the Constitutional Court has stipulated that in case of an environmental prohibitory injunction from its residents, the role of the municipality should not exclusively be supportive. A municipality can actively dispute this environmental prohibitory injunction, and thereby the claiming resident's interpretation of the municipal interest.
This leads to the conclusion that the municipality and its residents may defend two opposing interpretations of the concept 'municipal interest'. Where appropriate, it is up to the chairman of the court of first instance to cut the Gordian knot.
Associated areas of specialisation: Environment