LexInter | March 31, 2003 | 0 Comments

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE
Having regard to the appeal of the MINISTER OF EQUIPMENT, TRANSPORT AND HOUSING, registered on 23 November 1998 at the litigation secretariat of the Council of State; the MINISTER OF EQUIPMENT, TRANSPORT AND HOUSING asks the Council of State to annul the judgment of 15 September 1998 of the administrative court of appeal of Marseille, as per article 6 of this judgment the court ordered the State to guarantee the commune of Roquebrune-Cap-Martin up to a third of the sentences pronounced against it due to the cancellation of the building permit issued by its mayor to the Société au Service du Développement (SSD );

Having regard to the other documents in the file;

Having regard to the town planning code;

Having regard to the code of administrative courts and administrative courts of appeal;

Considering the law n ° 91-647 of July 10, 1991;

Considering the ordinance n ° 45-1708 of July 31, 1945, the decree n ° 53-934 of September 30, 1953 and the law n ° 87-1127 of December 31, 1987

Considering decree n ° 63-766 of July 30, 1963 modified by decree n ° 97-1177 of December 24, 1997;

After hearing in open court:

– the report of Mr Delion, Master of Requests,

– the observations of SCP Waquet, Farge, Hazan, lawyer of the SARL Société au Service du Développement (SSD), and of the SCP Célice, Blancpain, Soltner, lawyer of the municipality of Roquebrune Cap-Martin,

– the conclusions of Mr. Touvet, Government Commissioner;

Considering that, by the judgment under appeal of September 15, 1998, the administrative court of appeal of Marseille ruled that the prefect of Alpes-Maritimes committed a fault by failing to completely communicate to the municipality of Roquebrune-Cap-Martin the information that ‘he was required to bring it to the attention of the latter in accordance with the requirements of Article L. 311-4 of the Town Planning Code; that the court consequently, on the one hand, by article 6 of the judgment under appeal, condemned the State to guarantee the municipality up to a third of the sentences pronounced against it because of the annulment a building permit issued to the “Société au Service du Développement (SSD)”; that it has, on the other hand, by Article 8 of the same judgment, rejected the conclusions of the municipality tending to be fully guaranteed by the State of these same sentences; that the recourse of the MINISTER OF EQUIPMENT, TRANSPORT AND HOUSING tends to annul Article 6 of the judgment under appeal on the grounds that the court committed an error of law in considering that the prefect had disregarded the provisions of Article L. 311-4 of the Town Planning Code and thus committed a fault such as to engage the responsibility of the State; that, by way of the incidental appeal, the municipality of Roquebrune-Cap-Martin requests the annulment of Article 8 of the same judgment, as it rejects the surplus of its pleadings in guarantee directed against the State , in arguing that the court erred in law in

On the intervention of the Company in the Service of Development:

Considering that the Société au Service du Développement was a party to the proceedings before the trial judges; that as a following, his intervention is not admissible;

On the appeal of the Minister and the incidental appeal of the municipality of Roquebrune-Cap-Martin:

Considering that under the third paragraph of Article L. 311-4 of the Town Planning Code, relating to the development plan of a concerted development zone: “The representative of the State brings to the attention of the public person who took the initiative in creating the prescriptions, easements and provisions mentioned in the last paragraph of Article L. 123-1 and communicates to him any other information that he deems useful for drawing up the plan area planning “; that pursuant to the provisions of Articles L. 123-1, R. 123-5 and R. 311-10-4 of the same code, the Prefect must bring to the attention of the public person within three months took the initiative to create the area,

Considering that it emerges from the statements of the judgment under appeal that the Prefect of Alpes-Maritimes brought to the attention of the municipality of Roquebrune-Cap-Martin, within the prescribed period, all the information thus provided for by the code of town planning; that it also emerges from the file submitted to the trial judges that the information thus communicated concerned in particular the applicability to the territory of the concerted development zone of Saint-Roman of the prescriptions of the law of January 3, 1986, included in Articles L. 146 -1 and following of the town planning code; that, consequently, by judging that the prefect of the Alpes-Maritimes, by omitting “to mention among the elements thus communicated the constraints related to the application of the law of January 3, 1986”

Considering, on the one hand, that it follows from the foregoing that in the absence of fault on the part of the prefect, the municipality of Roquebrune-Cap-Martin is not justified in maintaining by way of the incidental appeal that the court would have committed an error of law by refraining from investigating whether the illegality of the building permit at the origin of the sentences pronounced against it found its direct cause in a fault committed by the prefect in the performance of the obligations of information which are incumbent upon him in application of the provisions of Article L. 311-4 of the Town Planning Code; that the incidental appeal of the town of Roquebrune-Cap-Martin must, therefore, be rejected;

Considering, on the other hand, that it also follows from the foregoing that the court committed an error of law by basing itself on an alleged disregard by the prefect of the obligations incumbent upon him in application of the provisions of article L. 311-4 of the town planning code, to condemn by article 6 of the judgment under appeal the State to guarantee the municipality of the third of the sentences pronounced against this one; that the MINISTER OF EQUIPMENT, TRANSPORT AND HOUSING is, consequently, founded to request the cancellation of this article 6;

Considering that under article 11 of the law of December 31, 1987, the Council of State, if it pronounces the annulment of a decision of an administrative court ruling in last resort, can “settle the case basically if the interest of a good administration of justice justifies it “; that, in the circumstances of the case, it is necessary to settle the case on the merits;

On the appeal conclusions of the municipality of Roquebrune-Cap-Martin, seeking that the State fully guarantee it against the convictions imposed on it:

Considering that it emerges from the documents in the file that, by a letter dated April 29, 1992, the prefect of the Alpes-Maritimes informed the municipality of Roquebrune-Cap-Martin of the national and particular prescriptions and the easements of ‘public utility applicable to the concerted development zone of Saint-Roman, as well as the information that it considered useful for the preparation of the development plan for said zone; that it has in particular, with regard to national and particular prescriptions, expressly indicated that were applicable to the territory of the commune of Roquebrune-Cap-Martin the provisions of the town planning code resulting from the law of January 3, 1986 and of its implementing decree of September 20, 1989 relating to coastal protection, and recalled the main constructability restrictions resulting therefrom; that it thus satisfied the obligation of information instituted by the prescriptions above-mentioned of the code of town planning; that as a following, the prefect did not commit in the fulfillment of this obligation of fault likely to engage the responsibility of the State;

Considering that if, on the occasion of the revision of the master plan for the agglomeration of Menton, the prefect of the Alpes-Maritimes subsequently communicated to the commune of Roquebrune-Cap-Martin a plan on which the land developed by the Company at Development Department do not appear in the coastal zone falling within the scope of the law of January 3, 1986, this circumstance is, in any event, subsequent to the creation of the ZAC of Saint-Roman and the issuance a building permit to the said company; that, consequently, the commune can not avail itself of it to seek the responsibility for fault of the State;

Considering that the State services made available to the municipalities for the preparation of town planning documents and the examination of land use requests act in permanent consultation with the mayor who sends them all the necessary instructions for the execution the tasks assigned to them; that the responsibility of the State can be engaged in this capacity towards the communes only when one of its agents commits a fault by refusing or by neglecting to carry out an order or an instruction of the mayor; it does not appear from the instruction that a fault of this nature was committed in this case;

Considering that the circumstance that the prefect of Alpes-Maritimes refrained from referring to the administrative court the land use plan for the commune of Roquebrune-Cap-Martin on the basis of which the contested building permit was issued, do not not take the character of a serious fault, only likely to engage in such a case the responsibility of the State towards the municipality;

 

Considering that it follows from all of the foregoing that the municipality of Roquebrune-Cap-Martin is not justified in maintaining that it is wrong that, by the contested judgment, the administrative court of Marseille rejected its conclusions tending to that the State guarantees it for all the sentences pronounced against it for the benefit of the Society in the Service of Development;

On the conclusions tending to the application of article 75-I of the law of July 10, 1991:

Considering, on the one hand, that the provisions of article 75-I of the law of July 10, 1991 prevent the State, which is not in the present case the losing party, from being ordered to pay to the municipality of Roquebrune-Cap-Martin the sum it requests for the costs incurred by it and not included in the costs;

Considering, on the other hand, that the Société au Service du Développement is not a party to the present proceedings, its conclusions tending to the application of the provisions of article 75-I of the law of July 10, 1991 are not admissible;

 

DECIDES:
Article 1: The intervention of the Company in the Service of Development is not permitted.
Article 2: Article 6 of the judgment of September 15, 1998 of the administrative court of appeal of Marseille is annulled.
Article 3: The incidental appeal and the conclusions of appeal of the municipality of Roquebrune-Cap-Martin tending that the State guarantee it for all the sentences pronounced against it for the benefit of the Society in the Service of Development are rejected .
Article 4: The conclusions of the commune of Roquebrune-Cap-Martin as well as those of the Société au Service du Développement tending to the application of the provisions of article 75-I of the law of July 10, 1991 are rejected.
Article 5: This decision will be notified to the Minister of Equipment, Transport and Housing, the municipality of Roquebrune-Cap-Martin and the Société au Service du Développement.

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