→ Contesting an offence

This is because it may not be established, even though severe penalties are provided for at the end of the procedure:

• fine
• stop of work
• affixing seals
• a prohibition on carrying out or continuing an activity on the premises
• carrying out development work
• restoration
• ordered to pay the added value generated by the infringement
• including confiscation of rent
• risk of the sale being cancelled

A company that was unaware that its building had been affected by an urban planning or environmental irregularity for decades could perfectly well be summoned before the criminal court.

This igularity may consist of an omission (e.g. work without a permit), an inadequacy (e.g. work separate from the permit), or an expiry of its validity (e.g. expired environmental permit).

ontesting the offence also ensures that your rights are respected. The Brussels court has already ruled that an administration that imposes regularisation when the situation is in order is committing a fault! This situation illustrates that it is sometimes necessary to stand up and be counted.

The offence is recorded by a local or regional official. Your company will be notified (procès-verbal). You can put forward your arguments. The official report is forwarded to the public prosecutor, who decides whether or not to prosecute. It will require the site to be returned to its previous state, work to be carried out or payment to be made for the added value resulting from the offending work.

If the Public Prosecutor's Office does not prosecute, it may refer the case to a regional sanctioning officer. The latter can impose administrative fines and compliance measures. 

When a civil servant observes an infringement, he compares the regularity of a contemporary situation with the regulations in force on the day of his observation. For there to be an original infringement, the acts and works complained of must have been carried out at a time when they required authorisation that was not sought. It is therefore necessary to determine and demonstrate when the situation in question occurred.

Procedure

• Gather all the documents, bills of sale and photographs you can about the building.
• If the target situation is visible from the outside, consult the aerial photo history at  http://bruciel.brussels/ .  

You now have proof of the ‘when’. Now you have to prove the ‘what’: which standard was applicable at the time the illegal construction was carried out?

There was never any infringement. 

Procedure

The offence report must be contested by providing the authority with proof of this prior offence. There is no original offence and no continuing offence.

There are 2 offences:

1. Acts and works that should have been subject to prior authorisation
2. Maintaining over time (passively or otherwise) a situation that no longer complies with the regulations in force

1 July 1992, 1 December 1993 and 7 July 2003, in particular, are key dates in the Brussels regulations: these are times when acts and works that did not require prior authorisation were made subject to this requirement.

These are also included: a setback zone that has become a car park, a change of business, a change in the number of units (no works subject to planning permission), a change in the distribution of units (no works subject to planning permission), certain changes of use, and so on.

• For work that does not require planning permission or the opinion or involvement of an architect: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2008111337&table_name=loi  ;
• For procedures and work that do not require an opinion by the fire fighting department (SIAMU): http://www.ejustice.just.fgov.be/eli/arrete/2018/10/18/2018014554/justel  ;
• o find out which standards apply to your building, click here: https://urbanisme.irisnet.be/cartographie/brugis  
• Urban planning rules: https://urbanisme.irisnet.be/lesreglesdujeu/  ; https://urbanisme.irisnet.be/lepermisdurbanisme/les-possibilites-de-recours  
• Environmental rules: https://environnement.brussels/bruxelles-environnement/transparence/legislations-environnementales  ; https://environnement.brussels/node/20214  ; http://www.ejustice.just.fgov.be/eli/ordonnance/1999/03/25/1999031155/justel  ; https://environnement.brussels/linspection/la-procedure-en-cas-dinfraction-video/les-infractions-liees-lenvironnement-et-au-bien-2  

Each project must be examined in detail. Our partner lawyers can help you with this.

Your company can be prosecuted for maintaining an offence, from the time it is notified of the offence (receipt of the penalty notice, issue of planning information). To benefit from the partial statute of limitations for the maintenance offence, your company must identify the offender.

Conditions

• You did not cause the alleged offence
• You were not aware of the offence of maintaining
• 10 years have passed since you received the penalty notice

It is up to the prosecuting authority to show that you knew, or should have known, of the existence of the offence. As far as the perpetrator of the alleged offence is concerned, the statute of limitations begins to run from the date of transfer of the property (generally the date of the deed of purchase/sale). Once the statute of limitations has expired, the administrative situation of the property is not regularised... As the criminal statute of limitations is personal, proceedings could be brought each time the property is sold... even if the statute of limitations had expired for the previous owner.

The public authority must prove that there is an offence, not the company that there is no offence. It is only if the authority demonstrates that there is - in its view - an offence that proof to the contrary must be provided.

• You must have received a copy of the penalty notice.
• When the regional administration appears, you can put forward your arguments (hearing or written defence), contest, explain, justify, request a stay, access the file and be assisted by a lawyer.
• If your company's registered office is also your home, the officer may only enter it (without the judge's authorisation) if he has received your prior written consent. There must also be evidence of an offence. Otherwise, the whole procedure on which the report is based is irregular.
• As for the injunction to stop work, it must be confirmed by the mayor or the delegated official, otherwise it will expire.

• The acts and works carried out were subject to planning permission at the time they were carried out.
• They were carried out before 1 January 2000
• They comply with the regulations in force at the time they are carried out OR they comply with the regulations in force at the time the College takes its decision.
• They did not require an impact assessment to be carried out (either on the day they were implemented or on the day the College was to make its decision).

Procedure

• Applying for planning permission to regularise the situation
• Seek advice from the firefighting department (unless exempted)
• Proof of compliance with the above conditions

Le permis ne pourra être refusé que pour un de ses 2 motifs 

• The above conditions are not met
• The firefighting department's opinion is negative

A settlement is an initiative by the Public Prosecutor that provides for the termination of proceedings in return for the payment of a sum of money. It is only used if the judge has not (yet) ruled on the case; if the penalty for the offence is not too high; and if the situation can be remedied. The offence must therefore have ceased.

It is different from a fine, which is a penalty. Fines may be criminal or administrative, depending on the prosecuting authority. It is not possible to be sentenced to both a criminal and an administrative fine for the same situation. This recourse is not fully satisfactory insofar as it implies a prior cessation of the situation denounced, unlike the transaction.

Procedure

There is nothing to prevent a settlement being proposed, provided the above conditions are met. 

The reporting of an offence is likely to concern sellers. It is therefore possible to :

• Activate their responsibility or guarantee

• Ask for a reduction in the sale price

• Ask for the sale to be cancelled

Before considering any appeal, be sure to reread the deed of purchase for the building and the planning information.