DJEMAOUN LAWYER, law firm in Paris, experienced in urban planning law

Litigation in urban planning law and  ownership by public entities

What is urban planning litigation?

It is a type of litigation specific to urban planning law, characterized by derogatory rules from the classic administrative litigation and which essentially concerns litigation concerning urban planning documents and authorizations and pre-emption.

Some notions :

 

Urban planning document: a regulatory act, of varying degrees of precision, containing rules that are enforceable against public and private persons, which concerns, at the level of one or more municipalities, the allocation, use and occupation of land. Some examples of urban planning documents :

 

  • The Schémas de Cohérence Territoriale (SCoT) is a forward-looking document comprising "a presentation report (abolished for SCOT projects drawn up or revised after April 1, 2021), a sustainable development and planning project, and an orientation and objectives document" (article L. 141-2 of the urban planning code). The SCoT sets objectives for the development and planning of the territory (article L. 141-3 of the urban planning code), general guidelines for the organization of space, coordination of public policies and the enhancement of territories in terms of the urbanization of certain spaces and the establishment of facilities.

 

  • The carte communale is drawn up at the communal or inter-communal level, which delimits the sectors in which construction is authorized and those in which it is not, except in exceptional cases (article L. 161-3 of the urban planning code). It makes it possible to derogate from the rule of limited constructibility provided for in article L. 111-1 of the urban planning code, by allowing, for example, the creation of buildable sectors not located in the continuity of an existing urbanization, but does not include any regulations specific to each of the zones, contrary to the PLU.

 

  • The local urban plan (PLU) is drawn up at the municipal or inter-municipal level (we will speak of inter-municipal local urban plan - PLUi) and includes "a presentation report, a sustainable development project, development and programming guidelines, regulations and appendices". The PLU or PLUi determines zones with different destinations and therefore variable rules within each of them, provides for networks and public facilities, sets rules relating to land use and occupation easements, architecture, taking into account the environment and landscape.

 

Planning permission: an individual administrative act issued by a legal person under public law (the mayor, the prefect) allowing the realization of a project in conformity with the planning rules in force. There are several types:

 

  • The planning certificate has the "effect of guaranteeing to the person to whom a planning certificate has been issued, regardless of its content, a right to have his application for a building permit filed during the following eighteen months, examined with regard to the planning provisions applicable on the date of this certificate, with the sole exception of those whose purpose is the preservation of public safety or health" (CE, December 18, 2017, No. 380438: aux Tables, concl. Ms. Julie Burguburu). An urban planning certificate can be:

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  • "Informative" which provides general information (situation of the land with regard to town planning provisions, administrative limitations to the right of ownership, the state of existing or planned public facilities and the system of applicable town planning taxes and participations) without pronouncing on the constructability of the land

  •  "detailed" or "pre-operational" which allows to know if a given operation can be carried out on a given parcel

 

  • Declaration prior to building work is required for "constructions, developments, installations and works which, because of their size, nature or location, do not justify the need for a permit" (article L. 421-4 of the town planning code). For example, the construction of a wall whose height above the ground is greater than or equal to 2m is subject to prior declaration;

 

  • A building permit is required for "constructions, even those without foundations" (article L. 421-1 paragraph 1 of the urban planning code). For example, a building permit is required for new constructions not exempted from formality and not subject to prior declaration, for certain works 1) on an existing construction, except for maintenance or repair works (e.g.: as soon as there is a creation of a floor surface or a footprint greater than 20 m2), 2) on a building registered as a historical monument.

 

Certain works, installations and developments are subject to a development permit (articles R. 421-19 to R. 421-22 of the town planning code).

Some constructions are exempt, due to their nature, small size, temporary character in particular, from any formality and do not require any planning permission.

Finally, there are demolition permits which are only necessary when the buildings are subject to special protection (building listed as a historical monument, for example) or when a municipality has decided to introduce the use of such permits.

What is public property litigation?

It concerns litigation relating to the determination, delimitation, use, occupation and transfer of the property of legal persons under public law.

Public property is defined as all the goods and rights, "of a movable or immovable nature, belonging to the State, to the local authorities and to their groupings" (article L.1 of the General Code of the Property of Public Persons - CGPPP) as well as "to the other public persons under the conditions fixed by the texts which govern them" (article L.2 of the CGPPP).

Some notions :

 

Public domain: "Subject to special legislative provisions, the public domain of a public person mentioned in article L. 1 is made up of property belonging to it which is either assigned to the direct use of the public, or assigned to a public service, provided that in this case they are the object of a development essential to the execution of the missions of this public service." (article L. 2111-1 of the CGPPP).

Private domain: "The property of the public persons mentioned in Article L. 1, which does not fall within the public domain by application of the provisions of Title I of Book I, is part of the private domain. This applies in particular to land reserves and real estate used for offices, excluding those forming an indivisible whole with real estate belonging to the public domain." (article L. 2211-1 of the CGPPP). The rural roads and the woods and forests of public persons under the forestry regime are also part of the private domain (article L. 2211-1 of the CGPPP).

 

The purpose of road traffic offences is to punish violations of the integrity and use of the public road domain (freeways, national roads, departmental roads, streets and public squares and their accessories (article L. 2132-1 of the CGPPP). Litigation concerning road traffic offences is the responsibility of the criminal judge.

Contraventions de grande voirie are used to punish "breaches of the texts whose purpose is to protect either the integrity or use of the public domain not belonging to the road network, or an administrative easement mentioned in article L. 2131-1". The contraventions de grande voirie do not protect the entire public domain because movable property does not benefit from this protection, nor do certain buildings (cemeteries, religious buildings, government buildings).

 

Expropriation: a prerogative of public power devolved exclusively to the State, it is an operation consisting of a forced transfer of the property of a private individual or a legal entity (the expropriated) to an expropriating legal entity (the State, local authorities, certain public establishments, certain private individuals empowered by law or managers of a public service), in the public interest and in return for fair and prior compensation.

 

Expropriation differs from :
 

  • Nationalisation, which involves

    • a law

    • concerns, in addition to immovable property, movable and intangible property (shares) of companies.

 

  • Pre-emption, which corresponds to a preferential right to purchase a movable or immovable property put up for sale. It is therefore not a forced purchase.


Expropriation comprises an administrative phase (declaration of public utility, declaration of transferability - land survey and transferability order) and a judicial phase (transfer of ownership, determination and payment of compensation).

The firm's services in urban planning and public property litigation

Thanks to its experience in urban planning and public property litigation before the Council of State, the firm represents individuals and legal entities before all administrative courts (administrative tribunal, administrative court of appeal and Council of State) and civil and criminal courts:

 

Urban planning litigation :

  • Litigation of the approval or modification of a local urban plan ;

  • Litigation concerning town planning authorizations (town planning certificate, non-opposition to prior declaration, building permit, development permit, demolition permit)

  • Pre-emption litigation

Litigation of the property of public persons :

 

  • Litigation of state occupation authorizations (appeals against refusal of authorization, abrogation of authorization, refusal to renew, state occupation fees)

  • Litigation concerning the ownership of a property by the public entity

  • Litigation on the allocation of property

  • Litigation on the delimitation of the public domain

  • Litigation for eviction from the public domain

  • Litigation for road and highway violations (conservation violations)

  • Litigation on expropriation

avocat urbanisme paris
Avocat au barreau de Paris