Hendrik Schoukens, lecturer in environmental law (UGent) and alderman for the Environment (Groen) in Lennik. Dries Verhaeghe is a director of Dryade.
This newspaper reported how last year no less than 150 hectares of Flemish nature disappeared illegally (DM 5/10). This concerns forests, grasslands, hedges, and wood edges throughout Flanders, located both within and outside nature reserves. The findings are made by 33 nature inspectors and 80 forest rangers. The silent assassination illustrates an inherent shortcoming in the application of our nature legislation.
But first, the good news. The Flemish nature policy has some bright spots. Think of the return of the wolf, the growing number of foxes in the city, the emergence of otters, and the increasing beaver populations. Nature proves to be surprisingly resilient when we protect it well. Nevertheless, most reporting on Flemish nature is not very uplifting. The insect population is collapsing, our nature is drying out, the water quality is subpar,…
General species are struggling. The ‘ordinary’ nature. Take the tragic fate of the wild hamster. A pest species in the countryside a hundred years ago, now threatened with extinction due to the scaling up of agriculture and the fragmentation of its habitat.
Worn landscape
The solution to environmental policy was to divide nature into protected and unprotected species and habitats. Drawing lines. It is mainly the protected species, which also turn out to be adaptive, that are doing well. Previous research also showed that most of the money from European nature policy goes to the so-called 'charismatic' species. Between 1992 and 2018, the EU allocated funds to protect 23 percent of vertebrate animals, while only 0.06 percent of invertebrate species can count on financial support.
In Flanders, the focus is more than ever on European protected nature. It is sometimes referred to as 'top nature', as if 'ordinary' nature were worth less. No policy priority. Until recently, as much as 90 percent of deforestation was favourably advised. Marshes and grasslands were eagerly drained, especially when they were located in agricultural or residential areas. Our landscape became impoverished and dried out without us realising it.
The idea that nature could obstruct the development of building land was considered blasphemy in the Flemish church. Every Fleming has a brick in their stomach; a patch of land with bats should not be allowed to decide otherwise, let alone a wild piece of marsh. Legal certainty prevailed over nature conservation. Recently, the Flemish Government put a stop to this by making drainage generally subject to permits. But only near protected nature.
Ordinary nature is once again left short-changed. Nevertheless, the Flemish Nature Decree has included two instruments since the 1990s that, although far from ideal, can also protect nature 'around the corner'. However, it seems that this is sometimes not sufficiently recognised by the government.
Article 14 of the Nature Decree contains a general duty of care towards nature. It can be applied throughout Flanders and not just in nature reserves. Our jurisprudence defines nature very broadly. Even valuable nature in gardens falls under this.
The nature assessment translates this duty of care into the permitting policy. A permit may only be granted when there is no 'avoidable damage' to 'nature' (Article 16 of the Nature Decree). Nevertheless, authorities readily grant permits that further destroy this general nature. However, the number of construction projects that fail this assessment in court has exponentially increased in recent years. It was recently confirmed that a row of poplars can also be considered nature, as it provides a home for bats and wild birds. It can no longer be simply stated that damage when developing a building plot is 'unavoidable' – and therefore fundamentally permissible.
It seems to be primarily the Flemish administrative judges who value general nature. The permitting policy does not follow suit. Inspection services appear to be hesitant regarding violations: they check whether the plot is protected, and if it is not, no action is taken. This indicates a box-thinking approach to our nature. If the destroyed nature does not fit into a regulatory box, no action is taken. This fear of taking action must be overcome. A landscape without those 'small' natural elements is a landscape without flavour. Flanders deserves better.