Planning Permission required for fixed installations related to renewable energy

The common law procedure can be found in Article D.IV.14, according to which the municipal college of the municipality in question shall rule on permit applications.

It is specified in Article R.II.36-11 under what conditions power- or heat-generating modules are permitted:

“One biomethanisation unit is permitted per property on condition that it is compatible with the neighbourhood.

One wind turbine is permitted per property insofar as its mast is of a maximum height of twenty-four metres.

One solar power- or heat-generating module is permitted under the following conditions:

1° either it is placed directly on an existing building;

2° or it is secured directly into the ground or via a support connected to the ground insofar as it is located at the back of the buildings in relation to the property line.”

However, the municipal college does not have such jurisdiction when the planned acts and works are of general interest. In accordance with Article D.IV.22, the permit will then be issued by the planning officer when it concerns, "in whole or in part, any acts or works: (...) 7° relating to constructions or facilities intended for activities with a purpose of general interest as follows: (...) k) related to renewable energy due to their purpose of general interest"

The acts and works, referred to in paragraph 1,7°, k), are "those relating to energy production intended solely for the community, i.e. energy injected into the electricity network or into the natural gas network without private consumption or serving an urban heating network and which concern the installation, connection, modification, construction, or extension: 1° of a field of photovoltaic panels, 2° of a wind turbine or wind farms, 3° of a hydroelectric power station, 4° of a biomass energy recover unit, 5° of a geothermal energy recovery unit." (Article D.IV.22(2))

This article has been specifically drafted in order to comply with the case law of the Council State according to which a production unit may be considered of a general interest only if energy production serves the community by being injected into the public network (Belgian Council of State, 12 January 2012, n° 217.209).

The CoDT also sets out that some production units are being permitted, installed and operated by derogation from the sector plan.

Indeed, Article D.IV.6 derogates from the common law rules regarding the issuing of planning permission. Indeed, it permits that, for the purposes of electricity or heat production, a planning permit or planning certificate n° 2 may be granted relating to energy production that is intended partially for the community, i.e. energy partially injected into the electricity network or into the natural gas network or serving an urban heating network. These acts could derogate from the sector plan in question.

Likewise, Article D.IV.8 stipulates that for the “purposes of electricity or heat production, a planning permit or planning certificate n° 2 may be granted in a neighbouring area and by derogation from the sector plan for modules which directly power any construction, installation or building located on the same real estate, complying with the sector plan”.

Lastly, Article D.IV.11 sets out additional derogations. This article is currently subject to an appeal at the Constitutional Court (case n° 6662).