7. Planning Appeals in France
- Planning Appeal Process
- Recours Administratif
- Recours Contentieux
- Breach of Planning Consent
7.1. Planning Appeal Process
If you wish to contest a planning application or planning decision you are going to need to be nimble on your feet.
Unfortunately, the process of considering most planning applications and challenging a consent is not as open in France as it is in the UK.
7.1.1. Challenging a Planning Application
There is no obligatory prior notification to neighbours of a planning application. Neither is there necessarily an open council meeting where the application is considered.
Indeed, you are not even entitled to view the planning application until the decision has been made as it is regarded as private! Under Article L311-2 of the Code des relations entre public et administration only documents on decisions made are accessible to the public:
'Art. L. 311-2 : Le droit à communication ne s'applique qu'à des documents achevés.
Le droit à communication ne concerne pas les documents préparatoires à une décision administrative tant qu'elle est en cours d'élaboration.'
The only public information requirement for a planning application is for the mairie to display a notice of the application, giving only the most basic information, outside of the town hall within 15 days of its receipt by them.
However, if you do not happen to see the notice outside of the mairie, or you are not otherwise made aware of it, then you may know nothing about it until contractors arrive on the site!
If the development happens to be in an adjoining commune then it is even less likely you will get to know about it, unless that is the local French community are up in arms about it.
Needless to say, major development proposals are likely to become widely known locally, and a protest group may have been established.
In addition, for certain industrial, agricultural and commercial developments, a public enquiry must be held.
7.1.2. Challenging a Planning Decision
It is possible to legally contest an actual planning consent or refusal.
When a planning decision is made the mairie should place a notice of the decision outside the village/town hall, and the applicant is also obliged to place a notice on the site.
Within two months of the notice of planning decision being displayed on the site it is possible to formally oppose the decision.
If there is a delay in erecting the notice, then the two-month period does not run until the date of the notice is displayed.
The mairie are also obliged to display the notice outside the town hall, but any delay by them to do so does not stop the clock running!
Responsibility for proving the notice has been displayed in accordance with the rules lies with the applicant, one reason why many applicants use a huissier (official bailiff) to display the notice or witness it being displayed.
A failure to properly display the notice does not provide you with grounds on which to oppose the planning decision. It merely permits you the opportunity to contest the application, for which you need to demonstrate that it does not comply with planning regulations.
If no notice is displayed then the right of appeal runs to six months after completion of the construction.
The local mairie are legally obliged to provide you with access to the documentation relating to the planning decision to provide copies if you so request, for which a fee may be payable.
You might be surprised at the difficulties some people find in getting these documents from a local council.
Accordingly, you may need to be persistent about the whole process. If there appears to be resistance then send the request by recorded delivery letter, or engage professional assistance.
7.1.3. Procedure
There are two formal procedures you can use to contesting a planning decision:
We review these two procedures in the next section.
In recent years the right to challenge a planning consent has been substantially reduced by the need to demonstrate that a clear prejudice would be suffered by the development.
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.
However, since then, 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.
A ruling of the Conseil d’Etat in June 2015 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 justify an interest and thereby a right to challenge the consent.
Neither can you contest the decision merely because the new development has an adverse impact on the value of your own property.
Similarly, you would not be able to contest a planning approval merely on the grounds that it would spoil a view you enjoyed from your property. It would need to have a wider adverse impact. Nor could you contest the consent due to the nuisance that might be caused by building works.
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.
In April 2016 the issue reached the Conseil d’Etat again, when some unwinding of the earlier 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 existence at least a year before the planning application was submitted, and for the articles of the association to have been deposited with the prefecture and placed on the public notice board at the local council.
Whichever approach you take you will need to get advice and assistance from an architect and/or an avocat specialising in planning law, as a detailed examination of planning rules will be required.
Do not simply engage the first architect or avocat you encounter, as you need someone who has a track record in contesting planning decisions, and who is actually competent and interested in your case.
You might be amazed at the number of occasions when a case has been lost, simply because of professional negligence/incompetence by the architect or avocat taking the case.
You will need to demonstrate that there has been non-compliance with the rules or procedures. You cannot contest on grounds of design, unless the regulations on design have been breached.
As there is often an absence of detailed planning rules, so it becomes more difficult to finds grounds on which the decision should be quashed!
7.1.4. Civil Action
If planning consent was obtained and your neighbour is acting in accordance with the consent, then, separately from your rights under planning law, you still have the right to bring a civil action on grounds of nuisance or breach of a servitude.
In relation to nuisance you will need to prove that the nuisance is 'excessive' and 'abnormal' and that, as a result, it has caused you harm. The right to bring an action lasts for five years from start of the nuisance.
In relation to a breach of servitude, or other entrenched property right, then the right to bring a civil legal action lasts for 30 years.
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