Environmental Enforcement Report 2013 Five years of Environmental Enforcement Act (2009-2013) Environmental Enforcement Report 2013 Five years of Environmental Enforcement Act (2009-2013) Lege pagina Contents Contents 5 Preface 7 1. INTRODUCTION 9 1.1 Flemish Parliament Act of 5 April 1995 containing general provisions on environmental policy 9 1.2 Methodology and relevance of the Environmental Enforcement Report 2013 10 1.2.1 Methodology 10 1.2.2 Structure 11 1.2.3 Notes 12 1.3 Environmental enforcement policy 13 2. EVALUATION OF THE REGIONAL ENVIRONMENTAL ENFORCEMENT POLICY 17 2.1 Evaluation of the regional environmental enforcement policy 17 2.1.1 Regional supervisors 17 2.1.2 Efforts related to environmental enforcement duties 19 2.2 Evaluation of the environmental enforcement policy pursued by the police 28 2.2.1 In general 28 2.2.2 Evaluation of the environmental enforcement policy pursued by the federal police 31 2.2.3 Evaluation of the environmental enforcement policy pursued by local police forces 34 2.3 Evaluation of the pursued local environmental enforcement policy 46 2.3.1 Provincial governors 46 2.3.2 Provincial supervisors 48 2.3.3 Competences of provinces regarding unnavigable watercourses (other than those included in the Environmental Enforcement Act) by appointed provincial staff 49 2.3.4 Supporting role of the provinces with respect to the municipalities 54 2.3.5 Mayors 58 2.3.6 Municipal supervisors 69 2.3.7 Intermunicipal associations 85 3. EVALUATION OF THE USE OF THE INDIVIDUAL ENVIRONMENTAL ENFORCEMENT INSTRUMENTS AND SAFETY MEASURES 89 3.1 Inspections during which an infraction was identified 90 3.2 Inspections without further action 92 3.3 Inspections with unknown results 94 3.4 Evaluation of the instrument 'recommendation' 96 3.5 Evaluation of the instrument 'exhortation' 98 3.6 Evaluation of the instrument 'identification report' 99 3.7 Evaluation of the instrument 'official report' 102 3.8 Evaluation of the instrument 'administrative measure' and 'appeals against decisions to impose administrative measures' 104 5 3.8.1 Evaluation of the instrument 'administrative measure' 104 3.8.2 Appeals against decisions to impose administrative measures 109 3.8.2.1 Number1 of appeals lodged against decisions to impose administrative measures and relevant decisions 109 3.8.2.2 Number of appeals lodged against refused petitions for the imposition of administrative measures and relevant decisions 111 3.9 Evaluation of the instrument 'safety measure' 112 4. EVALUATION OF THE FLEMISH ENVIRONMENTAL SANCTIONS POLICY 117 4.1 Evaluation of the criminal sanctions policy 119 4.1.1 Reception 122 4.1.2 State of progress 128 4.1.3 Reasons for dismissal 133 4.2 Evaluation of the sanctions policy pursued by the Environmental Enforcement, Environmental Damage and Crisis Management Division of the Department of Environment, Nature and Energy 149 4.2.1 Processing of environmental offences 149 4.2.2 Processing of environmental infringements 157 4.3 Evaluation of the administration of justice by the Environmental Enforcement Court 162 4.4 Evaluation of the sanctions policy pursued by the Flemish Land Agency 164 5. CONCLUSION AND RECOMMENDATIONS 167 5.1 Supervisors, efforts and inspections 167 5.2 Instruments 170 5.3 Imposition of sanctions 172 5.4 Recommendations 173 ANNEXES 179 1. Glossary of terms - abbreviations 180 2. List of graphs 182 3. List of Tables 185 4. List of responding municipalities 187 5. List of responding police districts 189 COLOPHON 191 6 Preface The Environmental Enforcement Act and the Environmental Enforcement Decree were introduced five years ago. In 2009, this effected huge changes in Flanders' environmental enforcement landscape. Demarcated supervisory duties for a large number of supervisors, an extensive set of instruments with a strong administrative component, the decriminalisation of certain environmental infractions and the introduction of the administrative fine are some aspects of these drastic changes. Meanwhile, both the Act and the Decree have been evaluated (the Flemish High Council of Environmental Enforcement issued an advisory opinion in this context) and adjusted to the needs and concerns in the field. For instance, the administrative transaction and the administrative penalty payment have been introduced. Each year, the Flemish High Council of Environmental Enforcement evaluated the implemented environmental enforcement policy of the past calendar year and helped shape the development of this policy based on the recommendations of the four Environmental Enforcement Reports that had already been published. In view of this wooden anniversary of the Environmental Enforcement Act and the Environmental Enforcement Decree it was opted to not only focus the 2013 Environmental Enforcement Report on the activities carried out by the enforcement bodies in 2013, but to make an overall assessment of the past five years and of the way in which the Environmental Enforcement Act was implemented. It may be expected that the environmental enforcement bodies have familiarised themselves with the Environmental Enforcement Act during the past 5 years. The present Environmental Enforcement Report will be a synthesis report which will aim to identify the trends in the implemented environmental enforcement policy. I would very much like to thank the various enforcement bodies in the Flemish Region for their contributions and participation during the past years in the design of the Environmental Enforcement Reports. Not only the Environmental Enforcement Act celebrates its wooden anniversary in 2014, but the Flemish High Council of Environmental Enforcement itself also celebrates its fifth anniversary. This means that we can look back on the great performance of this network and that the Flemish High Council of Environmental Enforcement will be newly composed for the next five years. Therefore, I wish to seize this opportunity to extend my sincerest thanks to the members, representatives and deputies for their commitment over the past five years. Together we have shaped the environmental enforcement policy, offered support to the enforcement bodies and created room for formal and informal consultation. With the new composition we will have to say goodbye to some people, but at the same time we will meet new people, acquire new insights and be given new opportunities. I want to warmly welcome the new members, representatives and deputies and invite them to further optimise the environmental enforcement policy within the Flemish High Council of Environmental Enforcement during the next five years. The new composition will make 2014 a transitional year. A wooden anniversary indeed offers an ideal opportunity for reflection. The activities that have so far been carried out by the Flemish High Council of Environmental Enforcement will be evaluated and be adjusted, if necessary. In addition, the integrated environmental permit will be an important pillar in this transitional year. Following the transfer of additional competences regarding spatial planning, the Flemish High Council of Environmental Enforcement will be transformed into the Flemish High Enforcement Council for Spatial Planning and Environment. These extended competences will create new opportunities and pose new challenges. An interesting period is starting! Prof. Dr. Michael G. Faure LL.M. Chairman of the Flemish High Council of Environmental Enforcement 7 Lege pagina. 8 1. Introduction 1.1 Flemish Parliament Act of 5 April 1995 containing general provisions on environmental policy The origin of the Flemish High Council of Environmental Enforcement (Vlaamse Hoge Raad voor Milieuhandhaving or VHRM) goes back to the Flemish Parliament Act of 21 December 2007 which supplements the Flemish Parliament Act of 5 April 1995 containing general provisions on environmental policy with a Title XVI 'Monitoring, Enforcement and Safety Measures'1, in short the Environmental Enforcement Act. The VHRM was created to support the Flemish Parliament and the Government of Flanders in the coordination of environmental enforcement policy and the interpretation of its content. In view of an efficient enforcement of environmental law, the VHRM sets up systematic consultations with the environmental enforcement actors. These consultations can result in agreements between the different actors. Such agreements are called protocols. The VHRM will set the pace, both in organising consultations with the environmental enforcement actors and in preparing and finalising the protocols. Within this framework, reference can be made to the first environmental enforcement protocol that was signed on 18 March 2013 by Minister Schauvliege and Minister Turtelboom, namely the ‘Prioriteitennota vervolgingsbeleid milieurecht in het Vlaamse Gewest 2013’2 (Priorities Document on the Prosecution Policy for Environmental Law in the Flemish Region). The current composition of the VHRM plenary meeting was laid down in the Government of Flanders Decree of 4 April 2014 on the appointment of the members of the Flemish High Council of Environmental Enforcement for the period 2014-2019.3 Moreover, the VHRM works together with a number of working groups to study specific issues. The complete composition of the plenary meeting can be found on the VHRM website4. One of the key tasks of the VHRM is drafting an annual Environmental Enforcement Report. The Environmental Enforcement Report contains at least a general evaluation of the regional environmental enforcement policy pursued over the past calendar