Commentary by Olivier Le Bot

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When an order granting planning permission contains inaccuracies, what impact do these have on its legality and, more broadly, on its scope? The Conseil d'État ruled on this issue, which is of great practical importance, in a decision dated 20 December 2023, which is included in the tables of the Recueil Lebon.

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I. Facts of the case

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This case concerns a planning permission granted by the mayor of Charleville-Mézières to a developer by an order dated 17 July 2017. The project involves almost 10,000 m² of floor space divided between offices, shops and a sports hall on a site where the town's Halles used to be. The planning permission authorises work on an existing building with a change of use.

However, on these two points, i.e. the purpose for which the building was to be used and the floor area created, a neighbour challenging the planning permission felt that the order was vitiated by inaccuracies. He appealed against the order on the grounds of ultra vires, alleging breach of article A. 424-9 of the Code de l'urbanisme. Paragraph 1 of this article states that "Where the project involves buildings, the order shall indicate their purpose and, where applicable, the floor area created".

After the Châlons-en-Champagne Administrative Court and then the Nancy Administrative Court of Appeal rejected the appeal on the grounds of ultra vires, the applicant appealed to the Conseil d'État. The Conseil d'État ruled on the appeal on 20 December 2023 in a combined chambers.

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II. The Conseil d'État's response

 

On the question of principle raised by this case, the Conseil d'État stated: "A building permit, subject to any conditions attached to it, only has the effect of authorising construction that complies with the plans submitted and the characteristics indicated in the permit application file. Any errors that may affect the information required by article A. 424-9 of the Code de l'urbanisme to appear on the order granting planning permission cannot give any right to build under conditions that differ from those set out in the application. As a result, the mere fact that the order granting planning permission contains inaccuracies or omissions concerning the purpose or purposes of the building that it authorises, or the floor area created, has no bearing on the scope or legality of the permission" (pt. 4).

Let us review the main thrust of this reasoning and the conclusions drawn from it.

 

 

III. A permit authorises a project

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The starting point is that a planning permission order authorises the project submitted or rejects it, but cannot amend it or replace it with another project. As a result, if the authorities mistakenly state something about the project (whether in terms of surface area or intended use) that does not correspond to the planning application, it is the application and not the order that should be referred to. In other words, in such a case, it is the data contained in the application that must be taken into account and not that mentioned in the order.

This rule stems from the very purpose of planning permission, which is to authorise a specific project. It is also based on two articles of the Town Planning Code: on the one hand, article A. 424-1 of the Town Planning Code, paragraph 1 of which states that "The competent authority shall decide by order on the planning application (...)"; on the other hand, article A. 424-2, under the terms of which the planning permission order "b) Refers to the planning application or declaration and states its main characteristics: name and address of the applicant, subject of the application, registration number, location of the works".

The Conseil d'État deduced from this, in the judgment under review, that a building permit "has the effect only of authorising construction that complies with the plans submitted and the characteristics indicated in the permit application file" (pt. 4). In so doing, it adopts, but slightly expands, a formula used by the Litigation Division in a judgment of 25 June 2014, in which it stated "that the effect of a building permit is only to authorise a construction that conforms to the plans submitted" (CE, sect., 25 June 2004, SCI Maison médicale Edison, no. 228437, Lebon). The Council added that any errors in the information to be included in the planning permission order "cannot give rise to any right to build under conditions different from those set out in the application" (pt. 4). Accordingly, inaccurate information in the planning permission order does not give the beneficiary the right to carry out works other than those he had applied for, nor does it deprive him of the possibility of carrying out those works.

What, then, is the scope of such an order?

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IV. Scope of an inaccuracy for third parties and the beneficiary

 

The Conseil d'État makes this clear in the conclusion to its reasoning: "the mere fact that the order granting planning permission contains inaccuracies or omissions with regard to the purpose or purposes of the building that it authorises, or the floor area created, has no bearing on the scope or legality of the permission" (pt. 4). To fully appreciate the implications of this formula, a distinction must be made between the situation of the beneficiary of the permit and that of third parties.

For the beneficiary of the permit, the situation is simple: he or she cannot rely on erroneous information in the permit that was issued. For example, if the licence authorises the change of use from "farm" to "residential" when the application was for a change of use to "commercial", the beneficiary of the licence can only use the premises for commercial purposes and not for residential purposes. Similarly, if the planning permission refers to a floor area of 300 square metres when the application only mentioned 30 square metres, only 30 square metres can be built, not 300. This had already been ruled in the aforementioned SCI Maison médicale Edison case. In this case, the Conseil d'État stated, "the fact that the calculation of the net floor area made by the department responsible for the application resulted in the wrong net floor area being stated on the planning permission issued on 14 October 1987 and amended on 19 May 1989" does not give the beneficiary "any vested right to build, independently of the plans submitted, a net floor area equivalent to that incorrectly stated on the planning permission".

 

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For third parties challenging the legality of the planning permission granted, the situation is just as straightforward, as clarified by the Conseil d'État in the judgment under review: they cannot use the contradiction between the planning permission file and the planning permission order as a ground of illegality on which to seek annulment of the disputed planning permission. Such a contradiction is considered to have "no bearing on (...) the legality of the permit" (pt. 4). This means that a plea based on such a contradiction is inoperative and therefore cannot be relied upon. In this case, the Conseil d'État relied precisely on this element "to dismiss the plea that the contested planning permission was unlawful in the light of the provisions of article A. 424-9 of the Town Planning Code" (pt. 4).

 

In this way, any errors in the planning permission order are neutralised, both for the beneficiary of the permission and for third parties who wish to challenge it.

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Olivier Le Bot, 13 January 2024 (© Olivier Le Bot)