Council of State
N ° 78825 Published in Recueil Lebon
M. MANDELKERN, Rapporteur
M. BRAIBANT, Government Commissioner
M. PARODI, President
Reading of May 28, 1971
IN THE NAME OF THE FRENCH PEOPLE
APPEAL BY THE MINISTER OF EQUIPMENT AND HOUSING, FOR THE ANNULMENT OF A JUDGMENT OF JULY 30, 1969 BY WHICH THE ADMINISTRATIVE TRIBUNAL OF LILLE HAS ANNULLED FOR EXCESS OF POWER ITS ORDER OF APRIL 3, 1968 DECLARING OF PUBLIC UTILITY IN VIEW FROM THE CREATION OF THE NEW EAST CITY OF LILLE, THE ACQUISITION OF BARE OR BUILDING LANDS NECESSARY FOR THE REALIZATION OF SETS OF HOUSING AND RELATED FACILITIES AS WELL AS SOCIO-CULTURAL EQUIPMENT;
HAVING SEEN THE ORDER OF OCTOBER 23, 1958; DECREE N ° 59-680 OF MAY 19, 1959; DECREE N ° 59-701 OF 6 JUNE 1959; THE ORDER OF JULY 31, 1945 AND THE DECREE OF SEPTEMBER 30, 1953;
3 ° THE GENERAL PLAN OF THE WORKS; 4 ° THE MAIN CHARACTERISTICS OF THE MOST IMPORTANT WORKS; 5 ° SUMMARY ASSESSMENT OF EXPENDITURE. – II. WHEN THE DECLARATION OF PUBLIC UTILITY IS REQUESTED WITH A VIEW TO THE ACQUISITION OF IMMOVABLES: 1 ° AN EXPLANATORY NOTE SPECIFYING THE PURPOSE OF THE OPERATION; 2 ° THE SITUATION PLAN; 3 ° THE PERIMETER DELIMING THE BUILDINGS TO BE EXPROPRIATED; 4 ° SUMMARY ESTIMATE OF ACQUISITIONS TO BE MADE; PUBLIC UTILITY IS REQUESTED WITH A VIEW TO THE ACQUISITION OF IMMOVABLES: 1 ° AN EXPLANATORY NOTICE STATING IN PARTICULAR THE PURPOSE OF THE OPERATION; 2 ° THE SITUATION PLAN; 3 ° THE PERIMETER DELIMING THE BUILDINGS TO BE EXPROPRIATED; 4 ° THE SUMMARY ESTIMATE OF THE ACQUISITIONS TO BE MADE; PUBLIC UTILITY IS REQUESTED WITH A VIEW TO THE ACQUISITION OF IMMOVABLES: 1 ° AN EXPLANATORY NOTICE STATING IN PARTICULAR THE PURPOSE OF THE OPERATION; 2 ° THE SITUATION PLAN; 3 ° THE PERIMETER DELIMING THE BUILDINGS TO BE EXPROPRIATED; 4 ° SUMMARY ESTIMATE OF ACQUISITIONS TO BE MADE;
CONS. THAT THESE PROVISIONS DISTINGUISH, AS REGARDS THE CONSTITUTION OF THE DOSSIER SUBMITTED TO THE INVESTIGATION PRIOR TO THE DECLARATION OF PUBLIC UTILITY, on the one hand, IN ITS PARAGRAPH 1, THE CASE WHERE THE EXPROPRIATION IS SUBJECT TO THE PERFORMANCE OF WORK OR OF WORKS, AND ON THE OTHER HAND, IN ITS PARAGRAPH 2, THE CASE IN WHICH THE EXPROPRIATION HAS ANY OTHER SUBJECT THAN THE ACQUISITION OF IMMOVABLES;
CONS. WHEREAS, IF THE CREATION OF A NEW TOWN NORMALLY INVOLVES, ON THE ONE HAND, THE ACQUISITION OF LAND AND, ON THE OTHER HAND, THE CARRYING OUT OF WORKS AND WORKS BY THE PUBLIC AUTHORITY CALLED TO ACQUIRE THESE LAND, ADMINISTRATION MAY CONTINUE TO PROCEED, IN THE FIRST TIME, TO THE SOLE ACQUISITION OF LAND, INSTEAD OF CONTINUING THE TWO OPERATIONS SIMULTANEOUSLY, WHEN IT APPEARS ON THE DATE OF OPENING OF THE INVESTIGATION PRIOR TO THE DECLARATION OF PUBLIC UTILITY, THE STUDY OF THE WORKS PROGRAM HAS NOT BEEN SUFFICIENTLY ADVANCED IN THE ABSENCE OF THE NECESSARY ELEMENTS;
CONS. THAT IT RESULTS FROM THE DOCUMENTS IN THE FILE ON THE DATE OF SEPTEMBER 23, 1967, ON WHICH THE PREFECTORAL DECREE WAS TAKEN OPENING THE PRESCRIBED INVESTIGATION WITH A VIEW TO THE PUBLIC UTILITY DECLARATION FOR THE ACQUISITION OF THE BUILDINGS NECESSARY FOR THE CREATION OF THE NEW CITY EAST OF LILLE, THE ADMNISTRATION HAS ONLY A FIRST SKETCH OF THE PLANNING AND URBAN PLANNING SECTOR DIAGRAM APPLICABLE TO THE NEW CITY; THAT, IN PARTICULAR, NEITHER THE UNIVERSITY ESTABLISHMENTS THAT IT MUST CONTAIN, NOR THE ROAD AXIS INTENDED TO SERVE IT, HAVE BEEN THE SUBJECT, AS TO THEIR LOCATION AND THEIR CHARACTERISTICS, PRECISE STUDIES; WHEREAS THE ADMINISTRATION WAS NOT IN A POSITION TO PRESENT ON THE ABOVE DATE A GENERAL PLAN OF THE WORKS AS WELL AS THE CHARACTERISTICS OF THE MOST IMPORTANT WORKS; THAT, THEN, SHE COULD, AS SHE HAS DONE, CONTINUE TO ACQUIRE ONLY THE NECESSARY LAND AND, THEREFORE, LEGALLY MAY NOT INCLUDE IN THE FILE OF THE INVESTIGATION PRIOR TO THE DECLARATION OF USEFULNESS PUBLIC THAT THE DOCUMENTS REQUIRED BY ARTICLE 1 (II) OF THE DECREE OF 6 JUNE 1959 ABOVE; WAS NOT IN A POSITION TO PRESENT AT THE ABOVE DATE A GENERAL PLAN OF THE WORK AS WELL AS THE CHARACTERISTICS OF THE MOST IMPORTANT WORKS; THAT, THEREFORE, SHE COULD, AS SHE HAS DONE, CONTINUE TO ACQUIRE ONLY THE NECESSARY LAND AND, THEREFORE, LEGALLY MAY NOT INCLUDE IN THE FILE OF THE INVESTIGATION PRIOR TO THE DECLARATION OF USEFULNESS PUBLIC THAT THE DOCUMENTS REQUIRED BY ARTICLE 1 (II) OF THE DECREE OF 6 JUNE 1959 ABOVE; WAS NOT IN A POSITION TO PRESENT AT THE ABOVE DATE A GENERAL PLAN OF THE WORK AS WELL AS THE CHARACTERISTICS OF THE MOST IMPORTANT WORKS; THAT, THEN, SHE COULD, AS SHE HAS DONE, CONTINUE TO ACQUIRE ONLY THE NECESSARY LAND AND, THEREFORE, LEGALLY MAY NOT INCLUDE IN THE FILE OF THE INVESTIGATION PRIOR TO THE DECLARATION OF USEFULNESS PUBLIC THAT THE DOCUMENTS REQUIRED BY ARTICLE 1 (II) OF THE DECREE OF 6 JUNE 1959 ABOVE;
CONS. THAT IT FOLLOWS FROM THE FOREGOING THAT IT IS WRONG THAT THE ADMINISTRATIVE TRIBUNAL BASED ON THE ABSENCE, IN THE INVESTIGATION FILE, OF CERTAIN DOCUMENTS REQUIRED BY PARAGRAPH A OF ARTICLE 1 OF THIS DECREE TO CANCEL, AS BASED ON AN IRREGULAR PROCEDURE, THE ABOVE ORDER OF THE MINISTER OF EQUIPMENT AND HOUSING;
CONS., HOWEVER, THAT IT APPEALS TO THE COUNCIL OF STATE, SEIZED BY THE ENTIRE DISPUTE BY THE DEVOLUTIVE EFFECT OF THE APPEAL, TO EXAMINE THE OTHER MEANS RAISED BY THE ”
ON THE COMPETENCE OF THE MINISTER OF EQUIPMENT AND HOUSING TO DECLARE THE PUBLIC UTILITY OF THE OPERATION: – CONS. THAT IT FOLLOWS FROM THE PROVISIONS OF ARTICLE 2 OF THE ORDER OF 23 OCTOBER 1958 AND ARTICLE 1 OF DECREE N ° 59-680 OF 19 MAY 1959 THAT THE MINISTER OF EQUIPMENT AND HOUSING WAS COMPETENT TO DECLARE OF PUBLIC UTILITY THE ACQUISITION OF LAND NECESSARY FOR THE CREATION OF THE NEW TOWN WHEN THE OPINION OF THE COMMISSIONER OF INVESTIGATION WAS FAVORABLE; THAT IF, ACCORDING TO ARTICLE 1 OF THE DECREE OF 19 MAY 1959, THE CONSTRUCTION OF A MOTORWAY MUST IN ALL CASES BE DECLARED TO BE DECLARED PUBLIC UTILITY BY DECREE IN COUNCIL OF STATE, THE MEANING OF SUCH A TRAFFIC ROUTE IS IN THE PLANS ESTABLISHED FOR THE NEW CITY LACK IN FACT; WHEREAS PART OF THE LAND TO BE ACQUIRED IS INTENDED FOR HIGHER EDUCATION ESTABLISHMENTS, NO LEGISLATIVE OR REGULATORY PROVISION IS REQUIRED ONLY BY THE ORDER DECLARING THIS ACQUISITION OF PUBLIC UTILITY BE SIGNED BY THE MINISTER OF NATIONAL EDUCATION;
ON THE INVESTIGATION PROCEDURE: – CONS. THAT ARTICLE 2 OF THE DECREE OF 6 JUNE 1959, ACCORDING TO WHICH “THE PREFECT APPOINTS BY ORDER A COMMISSIONER OF INVESTIGATION OR A COMMISSION OF INQUIRY”, LEAVE THIS AUTHORITY FREE TO CHOOSE ONE OR THE OTHER FORMULA; WHEREAS THE FEDERATION REQUESTED IS, THEREFORE, NOT FOUNDED TO SUBMIT THAT BECAUSE OF THE IMPORTANCE OF THE OPERATION, A COMMISSION SHOULD HAVE BEEN APPOINTED.
CONS. WHEREAS IT APPEARS FROM THE DOCUMENTS OF THE FILE THAT THE PRESCRIPTIONS OF ARTICLE 2 OF THE DECREE OF 6 JUNE 1959 RELATING TO THE PUBLICITY OF THE ORDER ORDING THE INVESTIGATION WERE RESPECTED; NO LEGISLATIVE OR REGULATORY PROVISION ONLY PROVIDES FOR THE REPORT OF THE COMMISSIONER OF INVESTIGATION WHICH, ACCORDING TO ARTICLES 8 AND 20 OF THIS DECREE, IS TRANSMITTED TO THE PREFECT OR SUB-PREFECT, MUST BE COMMUNICATED TO THE PERSONS COVERED BY THE EXPROPRIATION PROCEDURE;
CONS. IT DOES NOT APPEAR FROM THE DOCUMENTS IN THE FILE THAT, AS THE REQUESTED FEDERATION SUPPORTS, THE EVALUATION OF THE COST OF LAND ACQUISITIONS ATTACHED TO THE INVESTIGATION FILE HAS BEEN AFFECTED OF A SERIOUS INACCURACY;
ON THE PUBLIC UTILITY OF THE OPERATION: – CONS. THAT AN OPERATION CAN BE LEGALLY DECLARED OF PUBLIC UTILITY ONLY IF THE ATTACKS TO PRIVATE PROPERTY, THE FINANCIAL COST AND POSSIBLY THE SOCIAL DISADVANTAGES WHICH IT MAKES ARE NOT EXCESSIVE WITH REGARD TO THE INTEREST IT PRESENT ;
CONS. IT APPEARS FROM THE DOCUMENTS FILED IN THE FILE THAT THE DEVELOPMENT OF THE ZONE ON WHICH THE DECLARATION OF PUBLIC UTILITY WAS CONDUCTED HAS BEEN DESIGNED IN SUCH THAT THE UNIVERSITY BUILDINGS WHICH MUST BE LOCATED THERE ARE NOT SEPARATE FROM THE SECTORS RESERVED FOR IT HOUSING; WHEREAS THE ADMINISTRATION JUSTIFIES TO HAVE, TO ENSURE SUCH DEVELOPMENT, INCLUDE IN THIS ZONE A CERTAIN NUMBER OF PLOTS CONTAINING CONSTRUCTIONS WHICH WILL HAVE TO BE DEMOLISHED; WHEREAS, IN THESE CONDITIONS, AND TAKING INTO ACCOUNT THE IMPORTANCE OF THE ENTIRE PROJECT,
ON ABUSE OF POWER: – CONS. WHEREAS THE ALLEGED MISUSE OF AUTHORITY HAS NOT BEEN ESTABLISHED;
CANCELLATION OF THE JUDGMENT; REJECTION OF THE REQUEST PRESENTED BY THE “FEDERATION FOR THE DEFENSE OF PERSONS CONCERNED BY THE PROJECT CURRENTLY NAMED NEW EAST TOWN”.
Case law precedents: CONF. Council of State 1966-05-27 UNION FOR THE DEFENSE OF THE INTERPETS OF OWNERS AND AGRICULTURAL OPERATORS OF
Analysis by the Council of State
By the so-called “New Town East” judgment , the Council of State has deepened its control of the public utility of an operation, by developing the theory of the balance sheet.
In 1966, the government decided to create, east of Lille, a new urban complex comprising a university complex intended to accommodate more than thirty thousand students and a new town of twenty to twenty-five thousand inhabitants. The project, affecting five hundred hectares and amounting by its cost to one billion francs, was to involve the expropriation and demolition of a hundred residential houses. The operation having been declared of public utility by decree of April 3, 1968, an association deferred this act to the censure of the judge, by maintaining that the destruction of a hundred dwellings constituted a price too high for the realization of the project, which therefore had no public utility.
Traditionally, the administrative judge checked whether the operation was in itself of public utility, in abstracto , without taking into account the location of the project or focusing on its drawbacks. This case law had led to a weakening of the judge’s control, as soon as he admitted the public utility of any operation of a general interest character, even though urban planning operations accompanied by expropriation were gaining in importance. magnitude.
This is why, by the so-called “New Town East” judgment , the Council of State considered that an operation can only be legally declared of public utility if the attacks on private property, the financial cost and possibly the disadvantages of a social nature which it entails are not excessive having regard to the interest it presents. By this reasoning, he now weighs the advantages of the project against its disadvantages, whether in terms of its cost, its repercussions on the environment or its consequences on private property; The attack on other public interests is also taken into account ( Ass., October 20, 1972, Civil Society Sainte-Marie de l’Assomption , p. 657). In this case, the Litigation Assembly ruled that, given the planning approach consisting in not separating the university buildings from the areas reserved for housing and the importance of the entire project, the circumstance that it was necessary to destroy a hundred houses was not such as to deprive the operation of its public utility character.
In this control of the balance sheet, the judge takes into account the location of the structure in question: it is according to its location that the judge assesses the cost of the operation and the extent of the attacks on private property, social inconvenience and harm to other public interests. On the other hand, it does not control the choice made by the administration between two locations or two routes which are each of public interest: this is a question of expediency, and between several options the administration does not. is not required to choose the best possible location, as the Council of State recently recalled ( Ass. 28 March 1997, Federation of defense committees against the eastern route of the A 28 motorway , p. 123).
This case law has resulted in a relatively limited number of cancellations, because it also plays a preventive role with regard to the administration, aided by the public works section of the Council of State when it is consulted on draft declarations of public utility issued by decree. However, it may happen that major operations are canceled, as was the case for the construction of the A 400 motorway, which was to link, over a distance of 35 kilometers, the A motorway. 40, south of Annemasse, in Thonon-les-Bains, and whose financial cost, of more than 2.6 billion francs, was considered to exceed the interest of the operation in view of the expected traffic,Ass. March 28, 1997 , Association against the Transchablais highway project and others , p. 120).