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Flemish Municipal Roads decree largely passes Constitutional Court’s test

Publications | Real Estate and Environment law team

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On October 7, the Constitutional Court ruled partially in favor of the Flemish Region's May 3, 2019 decree on Municipal Roads. The Court dismissed almost all appeals against the decree, with the exception of the appeal against the provision dealing with the relocation of municipal roads.

The Municipal Roads decree introduces a uniform legal status for all roads of which the municipality is the manager. The decree-maker's intention is to harmonize and modernize the fragmented existing regulations governing municipal roads. The overall objective of the decree is to give municipalities the opportunity to further refine these regulations and, based on this, to draw up action plans taking into account the general objectives of the decree.

The publication of the Municipalities Decree immediately caused quite a stir and several appeals were lodged, among others by the non-profit organization Landelijk Vlaanderen, which argued that the legislator had mainly focused on the advantages of opening up the municipal roads to the public and had therefore lost sight of the owners and their additional burden.

The decree passed the test of the Constitutional Court, except for the criticised article 26 § 3 of the decree, which implements an unjustifiable difference in treatment between the owner of the land on which a new municipal road or new section of road will be built and the owner of the land on which an existing municipal road will be (re)built, modified or moved.

The Court of Appeal is of the opinion that the obligation of the municipality to acquire/appropriate the immovable property required for the construction of a new municipal road must also apply to the relocation of a municipal road on private property, since, according to the Court of Appeal in judgement no. 130/2021, this always involves the construction of a new municipal road or a new section of road.

With this judgment of the Court, the Flemish municipalities can now get to work on their local road policy.