Mr . Peter De Smedt LDR Environmental Lawyers

1. A NEW ADAPTIVE POLICY AND INSTRUMENTS FOR LINKING WATER STORAGE POLICY TO SPATIAL PLANNING IN FLANDERS:SINK OR SWIM? Mr. Peter De Smedt LDR Environmental Lawyers Centre for Environmental & Energy Law University Ghent Centre for water, Oceans and Sustainable Law University Utrecht Utrecht, 31 October 2013

2. Climate change is happening … et alors? Flanders Low-lying: more vulnerabletoclimate change effects (floods) One of the most denselypopulatedareas in the world: open spaceunderpressure How to design aneffectiveclimate change adaptationstrategy? Making Space for Water:protection of floodproneareasfor the purpose of a sustainable management of the water balances (scarityandfloods) Spatial Planning : keyplayersointegration of water management concerns is crucial factor in a successfuladaptationstrategy (linking water tospatial planning)

3. The Flemish CaseHow it starts… • How linking water policy tospatial planning? • Flemish Decreet on Integrated Water Policy (2003) • Water check-up: thoughlink is made between water policy and spatial planning • The ultimate purpose is avoiding harmful effects on the water system, by imposing permit conditions, plan regulations, or, if necessary, by refusing the permit or the plan • step-by-step approach, i.e. a “three-stage rocket”: refusal of a permit/plan (third stage) is only possible when no alternatives can be thought of to prevent, reduce (first stage), repair or compensate (second stage) the harmful effect • Nevertheless: water check-up has notpreventedflood-proneareaswere built up, with loss of (much) space for water storage • Reasons? • Lack of political courage • Lack of a solid, overarching water storage policy • Conceptuallimitations: the water check-up is not a jack of alltrades

4. The flemish caseThe metamorphosis • Trigger: during the aftermath of the big floods of November 2010, January 2011, a real sense of urgencyaroseconcerning the needfor a far-reachingdebateabout the struggleagainstfloods and a solid, overarching water storage policy • Circular LNE 2013/1 of the minister of the Environment, Spatial Planning and Public Works • The mainprinciples: • New water storage policy linkedtoSignalAreas • Building freezein SignalAreaswhenrezoningis necessary • Application of a mix of instrumentsfortailor-madesolutions • Banning creation of new Signal Areas • purpose: a programmatic approach toprotect water storage capacity in areaswith a probability of floodingwhich are indicated as 'hard' zoning codes in the spatialdevelopmentplans (residence, industry) but have notyet been developed • Containsguidelinesfor the application of a “sharpened” water check-up and the use of an instrument mix forconservation of water storage capacityin SignalAreas

5. SignalAreas • What are SignalAreas (SA)? (http://www.signaalgebieden.be) • Stillundevelopedareas • Thatare important to the water system becausetheycanbeflooded or becausethey act as a naturalsponge • Witha “hard” zoning code (residential and industrialzoning) When SA willbedeveloped in line with the currentzoning codes of the spatialdevelopmentplans (SDP) : the water storage capacitywillbeaffected • SA were designated and mapped in first generation sub RMPBs • Maps with SA were compared to flood hazard maps: • Is the zoning code of the SA compatible with the need for water storage capacity, or not? • On the basis of this assessment a ‘next steps-trajectory’ foreach SA is established

6. ‘Next steps-trajectory’ • Three trajectories: • Development SA in line withcurrent SDP is compatible with water storage capacity: • no further actions are needed • regularregular water check-up suffice (withadaptive building conditions) • Development SA in line withcurrentSDP is not compatible with water storage capacity, but smallprobability of flooding: • additional actions neededtosafeguard the water storage capacity, but no rezoning is needed • mix of instrumentsusedfor a tailor-made solution baseduponan area-orientedevaluation (usagerestrictions, e.g. regulationswithing SDP, SpatialOrdinances). • Development SA in line withcurrent SDP is not compatible with water storage capacity, but highprobabilityof flooding: • additionalactions neededtosafeguard the water storage capacity, and rezoningis needed; • SDP shouldthereforeberevised

7. And whileawaiting …preservation • Toprevent the foreclose of the ‘next steps-trajectory’ or, in cases where the trajectory has notyet been established/approved • Building freeze(standstill) in cases whererezoning is (probably) needed or preconditionsforadaptive building or userestrictionsin other cases

8. Development project realisation in the signal area Is there a known flood chance ? yes no Flood chance Project in actual flood prone area Small High Medium Is the parcel enclosed by buildings New developments yes no Area-specific evaluation: safeguard (standstill) or set preconditions Area-specific evaluation: safeguard (standstill) or set preconditions Preconditions for building work via water check-up (design for adaptation) Preconditions for building work via water check-up Water check-up Areas to be safeguarded (standstill) Preservative policy Decision tree generalframeworkfor water storage preservation

9. smart mix of instruments • Instrumentstopreserve • Sharpened water check-up (decession tree) • Public servitudestopreserve water storage capacity(prohibtionclauses, commandmentclauses) • Instrumentstoimplementate the ‘next steps trajectoy’ • Rezoningthrough SDP: but plan revisionsgiveoftenrisetoresistance • Reparcelling in combination with zoning swap: more quickly and budget-neutrally planning

10. Spatial development (plan or project) Project in Signal Area? yes no Has the ‘next steps-trajectory’ for the Signal Area been approved by the Flemish Government? yes no Is there compliance with general framework? Is there compliance with the trajectory for the signal area? yes no yes no Application of regular water check-up Water check-up positive for this aspect Water check-up positive for this aspect Negative water check-up Negative water check-up Decision tree sharpened water check-up

11. statements todiscuss • Spatialplanning andprepardenessfor a changingclimate… • Making spacefor water is an absolute priority: imposeanenforceableembargo on building up floodproneareas! • Spatial planning is a keyplayerbut anefficientadaptationstrategy is onlypossiblewithanintegratedspatialplanning. But anintegratedspatial planning is notpossible as long as spatial planning wants tobe a “playmaker”: break up the dominance of spatial planning in other policy fields! • Breaking up the dominanceof spatial planning requiresstrong instrumentsforintegrating water issues tospatial planning (e.g. the Flemish water check-up)