Site reclamation – where ‘brown’ comes up against ‘green’ in France

These neglected spaces, often polluted with remnants of France’s rich industrial past, are increasingly hosting a  rich biodiversity of species. Nature has reclaimed its rights over these abandoned sites. This makes their redevelopment radically more complex –  even though public authorities have been pursuing the goal of reclaiming brownfield sites for several years now within the broader context of limiting land artificialisation (the lasting alteration of previously untouched land that impairs its natural functions).

We know that the artificialisation of land has multiple negative consequences for the environment: landscape degradation, damage to biodiversity, destruction of natural habitats, increased risk of flooding... The fight against climate change undoubtedly requires combating land artificialisation – all the more true in France, where land artificialisation is growing faster than in its European neighbours.

In this context, the so-called “Climate and Resilience” Act dated 22 August 2021 set the ambitious goal of achieving zero net land artificialisation (ZNA) by 2050. To this end, it introduced a variety of measures to encourage the development of projects on brownfield site, including exemptions from certain urban planning rules. And with good reason: it is estimated that between 90,000 and 150,000 hectares are taken up by industrial brownfield sites in France.

Under Article L.411-1 of the French Environmental Code, it is prohibited to harm protected species (listed by ministerial decree). As an exception, however, this prohibition on harming protected species may be waived after obtaining a protected species exemption. But obtaining such an exemption is no easy task: as lawyers assisting our clients with these issues on a daily basis, we can confirm this.

Three conditions must be met:

• there is no satisfactory alternative solution – in other words, the project must necessarily be carried out at this location
• the project does not adversely affect the maintenance of the populations of the species concerned in their natural range at a favourable conservation status – in other words, the project must not threaten the conservation of the species
• the project must meet one of the five conditions listed exhaustively in the French Environmental Code; and particularly the project, by its nature and considering the economic and social interests at stake, must meet an “overriding reason of major public interest”.

Under the influence of the Court of Justice of the European Union and French judges, these criteria are becoming increasingly more complex to meet. Any instruction therefore requires detailed dialogue with our clients in order to develop the legal argument. Our experience shows that successful cases are often those in which the demonstration is truly co-constructed with the client.

Even though the redevelopment of brownfield sites is inherently consistent with national policy  – often in addition to enabling regreening, and thus creating a more favourable environment for biodiversity – it is not automatic that projects will meet the “overriding reason of major public interest”. This is why the issue is becoming increasingly worrying, both for real estate professionals and for local authorities who are often involved in the redevelopment of these abandoned lands.

Based on our experience, demonstrating that the conditions necessary to obtain an exemption have been met is extremely complicated, especially in situations where protected species have settled on site once the project was already under development. The possibility cannot be ruled out that the lawmaker will consider any issue arising in the short or medium term.

In the meantime, alongside lawyers and environmental consulting firms, real estate professionals must build a strong argument to obtain a protected species exemption – and hope that it is not challenged in court.