BELGIUM Trends and Developments Contributed by: Pieter Puelinckx, Yves Moreau, Melissa Verplancke and Lothar Van Driessche, Linklaters
Nitrogen deposits In a number of decisions, the Flemish Council for Permit Disputes declared the Flemish gov - ernment’s temporary non-binding guidelines on assessing the effect of nitrogen deposits on pro - tected nature areas to be unlawful. The Flemish Council for Permit Disputes considers that the guidelines (applying general threshold margins on such deposits, which differ for industry and agriculture) lack a scientific basis and fail to pro - tect these areas from excessive nitrogen depo - sition. This means they are not compliant with the EU Habitats Directive. As a result, projects located in the Flemish region and emitting nitro - gen were facing serious legal uncertainty con - cerning their pending permit applications. A few high-profile projects saw their permit refused or annulled on that basis. In order to remedy the issue, a new Decree was recently approved by the Flemish Parliament to again place more solid ground under permitting practice in the Flemish region. It forms part of a larger deal struck within the governing coali - tion, involving a trade-off between the interests of the building, agricultural and industrial sec - tors. Nonetheless, some of the legal concerns remain (and were also raised by the Council of State in its advice on the draft Decree) – nota - bly, around the use of differing thresholds for agriculture and industry, which is maintained in the Nitrogen Decree. It remains to be seen how the policy around nitrogen and permitting in the Flemish region will continue to develop, under or around the new Decree, and whether the Nitrogen Decree – if challenged before the Constitutional Court – will stand. ESG ESG is everywhere and this is no different in the real estate sector. Various ESG-related legisla - tive and non-legislative developments and ini -
• to family members (up to the third degree) or cohabitants; • of the bare ownership, usufruct right or any other rights in rem as well; • of the leased premises in the context of a sale of a building (including multiple housing units) occupied by different tenants; • of residential properties following mergers, demergers or liquidation of companies or in the case of a share deal; and • of a building subject to an expropriation order for reasons of public utility. Upon notification of the landlord’s intention to sell the leased premises (which must include the essential terms of the sale and the price request - ed by the landlord), the tenant will benefit from a period of 30 days to inform the landlord of their intention to purchase the property at the price requested by the landlord. If the property is then offered to another buyer at a more favourable price or on better terms, the tenant will then ben - efit from a period of seven days to exercise their preference right (which, in such case, is actually a pre-emption right). Environmental/Regulatory Trends in Real Estate PFAS contamination Concerns related to soil contamination with per- and polyfluoroalkyl substances (PFAS) are becoming more significant in real estate deals, particularly in the Flemish region, where the relevant agency OVAM ( Openbare Afvalstoffen - maatschappij voor het Vlaams Gewest (Public Waste Agency of Flanders)) is intensifying its scrutiny. The emergence of this trend while the legal framework has not yet been clearly estab - lished causes legal uncertainty and affects the timing of transactions.
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