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Are you sure you can challenge this Building Permit?

It is in the field of contestation of urban planning authorizations that the number of withdrawals of the petitioner is the most important before the administrative judge. Since 2013, new provisions have been introduced to fight against abusive appeals, particularly against building permits.

What are the elements to check before filing an appeal against a building permit? Do I have an interest to act against this building permit? How can I be sure?

Can I contest this Building Permit ?

In town planning law, not all legal appeals are based on the most praiseworthy intentions and motives. Some of these appeals are based on political, economic and sometimes even more dubious motives. This is the case of certain third parties who file an appeal to then withdraw their case.

Beyond that, the abundance of these appeals strongly hinders the real estate activity, the builders sometimes prefer to suspend their projects until the exhaustion of the appeals when they are not forced to do so by the completion of an proceeding of summary suspension, a very effective procedure nowadays (read our article on the subject).

Between the rights to recourse, equal access to justice and legal security, the balance is delicate and the legislator tries to impose a necessary framework. You should be aware of these requirements.

1. The particular case of associations

The law has attempted to block actions by fictitious associations. Some associations were created or modified solely for the purpose of challenging certain building permits.

Since 2006, the capacity of associations to act has been limited. As an association, you cannot challenge any building permit.

  • The articles of association of the association (possibly modified) must be filed with the prefecture on the date the permit is displayed and not on the date the appeal is filed.
  • There must be a sufficiently close link between the interests defended by the association as defined in its articles of association and the decision it intends to challenge

2. Do you have an interest in acting against this Building Permit?

You must have an interest to act

Traditionally, you should know that in order to contest a building permit, you must file an appeal for excess of power (read our article on the subject to know how to do this appeal).

On the other hand, you should know that the interest to act is an essential notion concerning the admissibility of the recourse for excess of power. This notion allows the judge not to “automatically” accept the appeal.

Having an interest to act means that you are able to demonstrate a real interest, which must be personal, legitimate and relevant. What is important is the infringement of your personal interest. This infringement will allow you to seize the judge.

A particularity is required in the field of town planning

The general case

In order to prevent as much as possible the use of this type of appeal (against a building permit for example), a limitation has been put in place since 2013.

In urban planning matters, your interest in acting depends on whether the project to be carried out is likely to directly or indirectly affect the conditions of occupation, use or enjoyment of the property you own or occupy.

In support of your appeal, you must be able to present all the elements likely to establish that your situation has been affected, without, however, providing proof of the certainty of this effect. The defendant, on the other hand, must provide all the elements necessary to demonstrate that the alleged infringements are not real.

This point is very important because at this stage, if you do not produce such elements, the judge can, in principle, reject your request.

You are the immediate neighbor

You should be aware that special treatment is reserved for “immediate neighbors”. In principle, they can justify an interest in acting when they submit elements relating to the nature, importance or location of the project to the judge.

In other words, if you are the immediate neighbor of a project in progress, you do not need to demonstrate any particular harm, you are presumed to have an interest in acting against this project. You only need to provide elements relating to the nature, importance or location of the project.

3. Your interest to act is assessed at a specific date

The posting of the request in the town hall: date of appreciation of the interest to act

You cannot lodge an appeal against a building permit if your interest in acting against it was born well after the project was made official. That is to say that you must have an interest to act at the date of posting in the town hall of the building permit application.

The main purpose of this rule is to prevent the constitution of an “artificial” interest to act, in particular through the acquisition or rental at the last moment of a building located in the neighborhood of the projected construction.

“Only natural and legal persons who have a pre-constituted interest at this date will be admissible to act.

Clarifications regarding associations

This rule is also applicable to the particular case of associations. Their interest to act can only be analyzed with regard to the formulation of their social object existing legally at the date of the posting in the town hall of the request for urban planning authorization.

An association cannot claim to have modified its articles of association in order to be able to take legal action when this change is only filed after the application has been posted.

The absence of posting of the application does not deprive you of an interest in the action

When the application for a building permit has not been posted at the town hall, this does not deprive you of your rights to bring an action.

First of all, this circumstance has the effect of not starting the 2 month period which is imposed on you to carry out the appeal for excess of power (read our article on this point).

Secondly, in the absence of the posting of the request in the town hall, your appeal is not subject to the date of appreciation of the interest to act. You do not have to prove that your interest to act existed on the day of the posting.

Do you have other questions about the building permit? Do you want advice on how to appeal against a building permit on the grounds of excess of power?

Contact us and an expert lawyer in urban planning / construction belonging to the AGN Avocats network will meet with you!

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