Conseil d’Etat, 22 December 2017, no. 395963
In a ruling dated 22 December 2017, the Conseil d’Etat clarified the powers of administrative courts in matters of planning litigation having regard to article L. 600-9 of the French planning Code and of the Danthony precedent.
In the case at hand, a draft municipal plan (carte communale) was ratified under the terms of a decision of the municipal council of Sempy, and then under the terms of a bylaw of the préfet of the Pas-de-Calais county. Further to a motion to void, these two decisions were invalidated by the tribunal administratif of Lille, the municipal council having omitted to consult beforehand the chambre d’agriculture (agricultural regulatory body) and the commission départementale de la consommation des espaces agricoles (local commission for the use of agricultural space) and thus, in violation of article L. 124-2 of the French planning Code. Accordingly, the cour administrative d’appel of Douai confirmed the decision of the Tribunal administratif and dismissed, in a ruling of 12 November 2015, the appeal of the commune on the grounds that the failure to carry out these two consultations was a defect which was not liable to be remedied.
Seized by an appeal brought by the commune, the Conseil d’Etat invalidated the ruling of the cour administrative d’appel of Douai on the following grounds:
- by virtue of the provisions of article L.600-9 of the French planning Code under the terms of which a court may, after having invited the parties to present their observations, stay the proceedings until the expiry of a period that it shall determine to enable the remedial of the defect affecting the preparation or revision of a territorial coherence scheme (schéma de cohérence territoriale or SCOT), of a local zoning plan (plan local d’urbanisme or PLU) or of a municipal plan;
- a court may implement these powers for the first time at the stage of the appeal, "even where the relevant planning document was cancelled by the judges in the first instance" ;
- to the extent where the Authorities voluntarily provide the court with the data enabling the remedial of the defect affecting the planning document and in particular, as in the case at hand, the missing opinions that were issued subsequently to the adoption of the document, the court may rely on this data, without being required to stay the proceedings, to the extent it is sufficient and that it has previously invited the parties to present their observations ;
- in the event, on the contrary, where such data is not sufficient, the court may stay the proceedings in view of obtaining all data enabling such remedial.
In the case at hand, the Conseil d’Etat noted that the commune had presented the two missing opinions within the framework of the appeal, that is to say:
- a favourable opinion from the commission départementale de la consommation des espaces agricoles ; and
- a unfavourable opinion from the chambre d’agriculture.
Combining the terms of article L.600-9 and its Danthony precedent (Conseil d’Etat, general section, 23 December 2011, no. 335033 : case law according to which, a defect affecting the orderly course of a prior administrative procedure, will only make a decision illegal if it is likely to exert an influence on the meaning of the decision or where it deprives the interested parties of a guarantee) and to the extent where the opinion from the chambre de l’agriculture was unfavourable, the proceedings were stayed regarding the appeal of the commune during a period of three months in order to enable the municipal council to enact a new decision confirming the ratification of the municipal plan.
In this ruling, the Supreme Court therefore condoned the fact that data, subsequent to the impeached instrument, was liable to be provided voluntarily to the Court and was liable to allow the defect affecting the impeached decision to be remedied.
We would specify that the Conseil d’Etat has the same reasoning as concerns litigation on planning permissions and the application of article L.600-5-1 of the French planning Code. In a ruling of 22 February 2018 (no. 389518), the Conseil d’Etat thus allowed the Authorities to voluntarily provide data designed to remedy a defect likely to entail the cancellation of a planning permission.