Right to Challenge Planning Consents
Tuesday 04 October 2016
In recent years the right to challenge a planning consent in France has been substantially reduced by the need to demonstrate that a clear prejudice would be suffered by the development.
If the regular complaints from French developers are to be believed the country is plagued by ‘abusive appeals’ against new developments.
The rhetoric has been particularly vitriolic against the alleged damage the appeals were doing to housebuilding in France, with many urgently needed new homes being halted or delayed as a result of appeals.
Given that France builds around 400,000 new homes a year, against 125,000 in the UK, it is a claim that takes some believing, particularly when government figures show that around 98% of planning consents are uncontested.
No-one disputes that in some major urban areas, notably Marseilles, there is a significant orchestrated opposition to many new developments, but in the vast majority of cases it all proceeds without hindrance.
Nevertheless, the powerful voice of the construction lobby was heard loud and clear by the government so in 2013 a law was passed which toughened the terms on which anyone could challenge a planning consent.
Prior to 2013 petitioners had the right to challenge a planning consent irrespective of whether they lived in proximity to it, and the consent could be successfully challenged on grounds of proximity and visibility to other properties, given the nature and importance of the project.
What the new law stated in essence was that in order to be able to bring a challenge an individual needed to be directly affected by the planned development.
In the words of Article L. 600-1-2 du Code de l'urbanisme, no challenge would be entertained by the courts unless 'les travaux sont de nature à affecter directement les conditions d'occupation, d'utilisation ou de jouissance du bien'.
That immediately brought an end to planning challenges by those who did not live near the development.
In order to reinforce the point, the new law also introduced a right for courts to impose severe financial penalties on those who brought an abusive appeal which caused financial consequences for the applicant.
Since the legislation was put in place it has been up to the courts to try and determine just what the law makes meant by such a curtailment of rights.
The initial responses were not encouraging, with a court in Lyon throwing out an appeal against a new development judging the claim to be political and in the process fining the appellants €87,000.
That was followed by a ruling of the Conseil d’Etat in June 2015 who judged that it was imperative appellants provide ‘all supported and sufficiently precise information capable of establishing that such an infringement is capable of directly affecting the conditions of occupation, use or enjoyment of his property’.
So to justify an interest in challenging a planning permission the applicant must demonstrate that the project will firstly impact and that such impact jeopardises the occupation, use or enjoyment of their property.
Merely being a neighbour of the planned development was not in itself enough the jusify an interest and thereby a right to challenge the consent.
Such a strict interpretation of the law was starkly in contrast to previous jurisprudence which accepted that proximity to the development was a sufficient ground on which to make a challenge.
Mercifully, in April 2016 the issue once again reached the Conseil d’Etat, when some unwinding of that interpretation took place.
Although the court remained steadfast in stating that some material prejudice must be caused, it eased the burden of proof on an appellant who was an immediate neighbour by accepting that they could justify, in principle, a clear interest in the planned development ‘having regard to their particular circumstances’.
However, that right of access remained conditional on the nature, size and precise location of the proposed development, stating: qu'eu égard à sa situation particulière, le voisin immédiat justifie, en principe, d’un intérêt à agir lorsqu’il fait état devant le juge, qui statue au vu de l’ensemble des pièces du dossier, d’éléments relatifs à la nature, à l’importance ou à la localisation du projet de construction'.
Accordingly, the position would seem to be that an immediate neighbour of a proposed development does not necessarily need to show actual prejudice to have a right to bring a legal action.
That still leaves the question open of just what is an ‘immediate neighbour’ and just how judges will in future interpret the nature, importance and location of the proposed development. These issues were not considered by the court, so remain to be defined on a case by case basis.
The key lesson, therefore, for all those seeking to contest is to not to assume that you will be granted automatic right of access, to clearly prepare a professional submission and be aware that if you lose you might be fined.
Alternatively, challenges made through existing local or national associations do not face the test of having to be directly affected. Provided the purposes of the association (including residents associations) are relevant to the proposed development the question of geographical proximity does not apply. However, in order to be valid the association must have been in place before the planning application was submitted.
You can read all about the planning application process in our comprehensive and free Guide to Land Planning in France.