Navigating legal waters – Exploring the implications of water‑sensitive open space areas (WORG)
31 Jan 2024
Over the past few months, Flanders has been plagued by rain and floods. Years of uninformed spatial planning – a high percentage of paved surfaces, changed land use, straightened or deepened watercourses, etc. – has resulted in an insufficient amount of unpaved areas for rainwater to drain into the soil. When rain cannot penetrate sufficiently into the soil, rainwater flows over land to lower areas. Rainwater runoff over land during heavy rainfall can cause extensive flooding in densely built Flanders.
Unfortunately, with climate change, such scenarios are likely to persist, requiring the government to take urgent measures to make more space for unpaved areas, water buffering facilities and water.
To better protect Flanders against floods, the Flemish Government wants to provide sufficient space for water and safeguard the water storage capacity of certain water‑sensitive areas. In 2023, a total of 138 areas in Flanders were provisionally designated as water-sensitive open space areas (Watergevoelig openruimtegebieden – ‘WORG’).
In this newsflash we discuss the types of areas implicated and the legal consequences of the designation.
What is a WORG?
A WORG is an area where a conflict arises between the (further) development of the area and the water system. The purpose of a WORG is to preserve open space, allowing water to naturally infiltrate into the groundwater system.
In the Flemish Urban Planning Code (Vlaamse Codex Ruimtelijke Ordening – ‘VCRO’), designating an area as a WORG is a way to legally anchor a ‘signal area’. Signal areas are undeveloped, water-sensitive areas with a ‘hard’ designation (e.g. residential area and industrial area), where the Flemish Government prevents (further) development. However, signal areas do not change the area’s zoning destination. The only way to change an area’s zoning destination is through a spatial implementation plan (Ruimtelijk uitvoeringsplan – ‘RUP’) or a WORG.
The procedure to designate a WORG is less complex than that to implement an RUP, which explains the Flemish government’s choice to (provisionally) designate 138 areas as WORG last year.
The legal implications of the designation WORG
Designating an area as a WORG revokes the zoning destination of that area. This means that building permits for new projects linked to the revoked zoning destination cannot be granted. Existing and permitted constructions can, however, remain and retain certain rights.
Only limited use can be made of areas designated WORG such as water management, nature conservation, forestry, landscape preservation, agriculture, and recreation. In addition, any constructions linked to this use are limited to small-scale constructions such as sanitary buildings, shelters, flood-prevention constructions, (recreational) agricultural constructions and the installation/relocation of utility lines or public roads if necessary to improve environmental quality.
In summary, designating an area as a WORG results in a nigh on complete construction ban, with a focus on maximum preservation of open space. It also restricts the development potential of areas like residential or industrial areas. Therefore, the VCRO provides for a compensation scheme for planning-related damages, which is identical to the one provided for RUPs.
Can the designation of a WORG be opposed?
The designation of a WORG only obtains legal effect after the final designation by the Flemish Government. Following the provisional designation, a 60-day public inquiry must take place. The list of ongoing public inquiries can be found on the integral water policy website.
The public inquiry for the provisional designation of 34 WORG in the provinces of Limburg and West Flanders is open until 2 February 2024. The public inquiry for the provisional designation of 73 WORG in the provinces of Antwerp, East Flanders and Flemish Brabant is also open until 8 March 2024.
During these public inquiries, all affected parties can submit their objections. After the final designation, parties can lodge an appeal with the Council of State.
If you need further assistance on this matter, don’t hesitate to reach out to our Public Law team!
Els Empereur, Karel Veuchelen and Deniz Bahtijarevic
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