Conseil d’Etat, 9 October 2017, no. 398853
In the case under review, a bylaw granting planning permission for the construction of a building with sixteen accommodation units and a retail unit on the ground floor, had been issued to a company by the mayor of a commune. Having subsequently been made aware of data which was not included in the planning permission application file, the latter finally withdrew the bylaw on the grounds that it was illegal, to the extent that the applicant had no legal standing to apply for such. It appeared indeed that, at the date of filing its application, the company was aware that the sale and purchase agreement (promesse de vente) on which its capacity as applicant was based was void and that it was even informed that the owner of the land had granted a sale and purchase agreement of identical nature to a third party.
This case was first of all an opportunity for the Conseil d’Etat to recall the well established principle according to which the authority investigating a planning permission application is not required to check the accuracy of the affidavit provided by the applicant to justify its capacity to apply for such an authorisation. On the other hand, if at the date on which the authority issues its decision, it has information enabling it to establish the fraudulent character of the affidavit presented, it is required to refuse to issue the requested authorisation on these grounds.
Indirectly confirming a previous decision rendered on 21 November 2012, the Conseil d’Etat took the trouble to define the concept of fraud recalling that qualifying such fraud involves proving that the applicant effectively had the intention of misleading the Authorities. A mere error in the declarations filed is therefore not sufficient in any way to prove the existence of fraudulent tactics.
However in dismissing the appeal brought by the applicant company, the Supreme administrative court went further and added a condition to its case law. It considered indeed that the authority competent to issue a planning decision is legally entitled to withdraw a planning permission on grounds of fraud related to the applicant’s capacity based on data which was not included in the application file and which it only became aware of subsequently to the delivery of the litigious authorisation, and thus without any condition in terms of deadline.
The Conseil d’Etat disregarded moreover the circumstance that the applicant company had brought a legal action to void the second sale and purchase agreement granted by the owner of the land.
Under the terms of this decision dated 9 October 2017, the Conseil d’Etat provided a summary whilst clarifyingof the substantive law on the withdrawal of planning permission obtained by fraud.