2010/2011: key decisions regarding planning permissions

Planning law is one of our Government & Regulatory Group’s core practices.
We advise and litigate in this area before the administrative courts.

Case law being abundant in this field, we have picked out below some of the most interesting decisions rendered in 2010 and 2011.  The focus is on the examination phase, appeals and the powers of the courts, as well as the environmental aspects of planning permissions.

The examination phase of planning permission applications
Some planning officers occasionally require (for dilatory purposes) additional documents that are not specified in the French Planning Code. This has been recognised as wrongful and the planning authority could be held liable if it is ascertained that harm was sustained as a result (Marseilles Administrative Appeal Court, December 17, 2010, Teychenne, no. 08MA04880). Since the planning permissions reform entered into force on October 1, 2007, the examination phase is better structured, but this decision should nevertheless remain relevant.

The examination phase of commercial planning permission applications
Contrary to the rules applicable to ordinary planning permissions, there are no provisions requiring the Commission départementale d’aménagement commercial (CDAC – Departmental Committee for Commercial Development) to request supplemental information for applications which are deemed insufficient. The planning application must contain a survey allowing the Committee to assess, inter alia, with regard to the permission criteria set forth in Article L. 752-6 of the French Commercial Code, the foreseeable effects of the project on the environment. On the basis of said Article, the Conseil d’Etat ruled that the CDAC could not deny permission straightaway. It had an obligation to invite the applicant to supplement its application in order to make up for any insufficiencies in this area (Conseil d’Etat, May 30, 2011, Frénodis, no. 336055).

Regularising a planning permission during an appeal process
When a third party appeals a planning permission, it is not unusual for the planning authority to issue a modified planning permission during the appeal process, in order to regularise the permission. In this case, the beneficiary of the planning permission must notify the third-party appellant of the new decision. Otherwise, the period for appealing the new modified planning permission cannot begin to run with respect to such new permission (Conseil d’Etat, March 23, 1973, Cie d’assurances l’Union, no. 80513). The Conseil d’Etat has gone a step further and ruled that, in addition to this necessary notification, the third party’s appeal period cannot begin to run unless the modified planning permission has been duly displayed on the land during a continuous period of two months, pursuant to Article R.600-2 of the French Planning Code (Conseil d’Etat, May 23, 2011, Paris Habitat OPH, no. 339610).

Partial revocation and the powers of the courts
When a planning permission contains an illegality that can be corrected by obtaining a modified planning permission, the courts may, on the basis of Article L. 600-5 of the French Planning Code, revoke such permission only partially.  Such revocation may pertain to a violation of the article of the planning rules requiring the applicant to create parking spaces (Conseil d’Etat, February 23, 2011, SNC Hôtel de la Bretonnerie, no. 325179).

Demolition of public buildings and the powers of the courts
There continue to be exceptions to the principle of the inviolability of public buildings and this exception is not insignificant. When the administrative court revokes planning permission authorising the construction of a public building, it may order, at the applicants’ request, the suspension of the works or the demolition of any buildings not allocated to the service or use of the public. In the case in question, the planning permission was for the construction of a seven-storey car park in a mountainous site of “great landscape quality”. Before upholding the decision to demolish the uncompleted public building, the Conseil d’Etat drew up a list of criteria in the form of a costs/advantages assessment: (i) check that the planning permission cannot be brought into compliance, (ii) consider the drawbacks of keeping the building for the public and private interests in question, (iii) consider the consequences of the demolition for the general interest, given the cost of the investments already made and any possibility of reconverting the constructions. By taking all of these various elements into consideration, it will be possible to check that the general interest is not excessively harmed, in which case the demolition may be ordered (Conseil d’Etat, October 14, 2011, Cne de Valmeinier, no. 320371).

Planning permission and the Environmental Charter
The Conseil d’Etat has laid down the rule whereby the principle of precaution, as set forth in Article 5 of the Environmental Charter, applies to the public authorities in their respective areas of responsibility, including when a mayor decides on the grant of planning permission. The constitutional value of the Charter therefore transcends the principle of the independence of legislations. It nevertheless ruled that, with regard to these provisions, a mayor does not commit a manifest error of assessment by authorising the development of a mobile phone relay-antenna considering the current knowledge of the risks resulting from exposure to electromagnetic fields (Conseil d’Etat, July 19, 2011, Association du quartier “Les Hauts de Choiseul”, no. 328687). The Conseil d’Etat also recognised the State authorities’ exclusive competence to regulate the development of relay-antenna on municipal territories (Conseil d’Etat, October 26, 2011, Municipality of St Denis, no. 326492).

Wind farms in mountainous or coastal areas
In mountainous or coastal areas, urbanization must in principle be planned in continuity with existing residential areas. This rule aims to prevent “urban sprawl” in these special areas. In mountainous regions, there are exceptions for “public installations or facilities that are incompatible with neighbouring residential zones” (French Planning Code, Article L. 145-3). The Conseil d’Etat first considered that the construction of wind farms constitutes urbanisation within the meaning of these provisions, and thus found that, considering the intended use and importance of the facility in question (a farm of 8 wind turbines), the constructions are eligible for the exception for public facilities (Conseil d’Etat, June 16, 2010, Leloustre, no. 311840). On the other hand, in coastal areas, there is no comparable exception, such that it is illegal to grant planning permission for the construction of isolated wind turbines (Nantes Administrative Appeal Court, January 28, 2011, Néo Plouvien, no. 08NT01037). Insofar as the Grenelle 2 Act prohibited the development of wind turbines at a distance of less than 500 metres from existing residential housing (French Environmental Code, Article L. 553-1), it would seem that permission cannot be granted in coastal municipalities.

Christian Pierret - Partner

Dominique de Combles de Nayves - Partner