The lockdown linked to the coronavirus, imposed since March 16, has had an impact on many real estate projects and operations, and in fact raises a number of questions in terms of urban planning. Since the beginning of the lockdown, many local authorities and actors in the field of urban planning law have thus found themselves confronted with difficulties in pursuing their activities, due to the lack of clear instructions in terms of urban planning from the State.
Indeed, the application of the numerous deadlines applicable in the field of town planning raises various questions. Order n° 2020-306 of 25 March 2020 relating to the extension of deadlines during the health emergency period and the adaptation of procedures during this same period (“Expired deadlines” Order), published in the JORF of 26 March 2020, provides some answers, at least provisionally.
The main purpose of the “Expired deadlines” Ordinance, adopted on the basis of Emergency Act No. 2020-290 of 23 March 2020 to deal with the covid-19 epidemic, is to “adjust the deadlines that have expired during the period of health emergency and adapt procedures during this same period”.
Title 1 of the Ordinance “Expired deadlines” is devoted to the general provisions on the extension of time limits. The general scope of the measures enacted thus makes it possible to include the field of town planning. Generally speaking, the time limits for investigations are suspended or postponed depending on whether they began to run before 12 March (suspension and postponement) or after this date (complete postponement), and the time limits for appeals are extended.
Article 2 provides that “any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation shall be subject to nullity, sanction, lapse, foreclosure, prescription, inopposability, inadmissibility, expiry, automatic withdrawal, application of a special regime, nullity or forfeiture of any right whatsoever and which should have been accomplished during the period mentioned in Article 1 shall be deemed to have been done in time if it has been done within a period which may not exceed, as from the end of that period, the period legally prescribed for taking action, up to a limit of two months.
The same applies to any payment prescribed by law or regulation for the acquisition or retention of a right.”
In concrete terms, the effect of Article 2 of the “Expired deadlines” Ordinance is to prohibit the act from being regarded as late, if it took place within the new deadline. Moreover, it should be noted in this respect that the Report to the President of the Republic on the said “Expired deadlines” Ordinance specifies in this respect that “the Ordinance does not provide for abolishing the performance of any act or formality whose term expires within the period in question; it merely allows the act performed within the additional time limit to be considered as not being late”.
Article 2 of the “Expired deadlines” Ordinance thus postpones the deadlines for appeals by third parties against a planning permission; the deadlines for contentious appeals expiring between 12 March 2020 and 24 June 2020 are therefore postponed to 25 June 2020 and run until 25 August 2020.
In other words, a permit posted during the state of health emergency should not cause the contentious period to run, which will start automatically on 25 June (end of the state of emergency plus 1 month).
In fact, if it is recommended for the petitioners to post their planning permission during the period of a state of health emergency, this permit posted during the period of confinement may not allow the third party to see the project. However, the purpose of posting a building permit is concretely to ensure that third parties are aware of the project and enable them to preserve their rights and to appeal against the authorization. It therefore seems equally advisable to provide for an additional posting as of 25 June 2020 for a maximum of two months in any event, and to carry out, as a precautionary measure, observations of this posting by a bailiff at the end of the health emergency period.
This measure will extend the period of time for third parties to appeal against a planning permission. In concrete terms and by way of illustration, a planning permission, posted on the land as from 30 January 2020 and whose appeal period was in principle due to expire on 31 March 2020, could therefore be challenged in court until the expiry of a period of two months from the end of that period, that is to say 25 August 2020.
Similarly, the author of an appeal must in principle notify his appeal within 15 days to the holder of the authorization, on pain of inadmissibility (Article R.600-1 of the Town Planning Code); however, if this 15-day period expires during the period of health emergency, it will be interrupted as of 12 March 2020 and a new period will begin on 25 June 2020 for a period of 15 days, i.e. until 9 July 2020.
However, it should be noted that the Circular of the Ministry of Justice of 26 March 2020 N°CIV/01/20 presenting the provisions of Title I of Order No. 2020-306 of 25 March 2020 relating to the extension of time limits that expired during the period of health emergency and the adaptation of procedures during this same period (NOR: JUSC 2008608C), specifies that these provisions concern only the time limits that expired or the acts that had to be performed during the period of health emergency.
Title II of the Ordinance “Expired deadlines” also lays down special provisions on time limits and procedures in administrative matters, in order to take account of certain specific features of administrative action.
First of all, with regard to the period of validity of town planning authorizations and related administrative authorizations, Article 3 of the “Expired deadlines” Ordinance provides in particular for the automatic extension of “3rd authorizations, permits and approvals” whose term expired at the end of a period of two months following the end of this period”, i.e. provisionally on June 24, 2020, except for any subsequent postponement linked to the evolution of the pandemic.
Article 7 of the Order provides in this respect that “subject to obligations arising from an international commitment or European Union law, the periods at the end of which a decision, agreement or opinion of one of the bodies or persons referred to in Article 6 may or must be reached or is implicitly acquired and which have not expired before 12 March 2020 shall, on that date, be suspended until the end of the period referred to in I of Article 1.
The starting point of time limits of the same kind which should have started to run during the period referred to in Article 1(I) shall be postponed until the end of that period.
The same rules shall apply to the time limits for the same bodies or persons to verify the completeness of a dossier or to request additional documents in connection with the examination of an application, as well as to the time limits for public consultation or participation.”
Article 8 then provides that “where they have not expired before 12 March 2020, the time limits imposed by the administration, in accordance with the law and regulations, on any person to carry out inspections and work or to comply with requirements of any kind shall, on that date, be suspended until the end of the period mentioned in Article 1(I), except where they result from a court decision”.
The starting point for similar time limits which should have started to run during the period referred to in Article 1(I) shall be postponed until the end of that period. »
In practice, it follows from these provisions that the period of validity of building authorizations, commercial operating authorizations or approvals issued under town planning law, which were due to expire between 12 March 2020 and 24 June 2020 (subject to the extension of the state of health emergency), are extended for two months following the end of that period, i.e. until 24 August 2020.
The deadlines for processing authorization applications have been adapted, with a moratorium proving indispensable, in order to avoid, in particular, the organizational difficulties resulting from this period of containment leading to the issuance of tacit authorizations, in accordance with the provisions of Article L. 424-2 of the Urban Planning Code, but unintentionally.
In addition, Article 8 interrupts, over the same period, the time limits imposed by the administration in order to carry out the checks and work relating to the declarations attesting the completion and conformity of the work (DAACT).
Finally, Order No. 2020-305 of 25 March 2020 adapting the rules applicable before the administrative courts, which provides, in particular, a framework for the extension of the time limits for proceedings and judgments in matters of urban planning litigation by expressly referring to the provisions of Article 2 of the Order “Expired deadlines”.
Finally, it should be noted that there is no doubt about the application of these provisions in terms of town planning. The Ministry of Territorial Cohesion and Relations with Local and Regional Authorities has recently stated on its site that:
“The order includes measures suspending the time limits applicable to applications to the administrative authorities. This concerns applications giving rise to a decision by an administrative authority, and in particular implicit decisions of acceptance or rejection, as well as the time limits set for the actors involved in the procedure for examining such applications. By way of illustration, applications formulated in the field of soil law (declaration of works, building permits, development permits, etc.) are covered, as well as the deadlines applicable to declarations presented to the administrative authorities, for example a declaration of intent to dispose (DIA).
The same applies to deadlines for consultation of the public or any body or authority prior to a decision being taken by an administrative authority. For example, these provisions will make it possible to suspend ongoing public consultations or inquiries, or to allow consultation with bodies which have been unable to meet. Finally, authorizations, permits and approvals issued by an administrative authority will also be extended.” (Source: https://www.cohesion-territoires.gouv.fr/les-collectivites-territoriales-et-leurs-groupements-ordonnances-du-conseil-des-ministres-du-25 )
Thus, it is possible to consider that all the requests formulated in terms of soil law (declaration of works, building permit, development permit, etc.) are covered by this suspension as well as the time limits for investigation, appeal, legality control, investigation of declarations of intent to dispose, as well as certificate applications.
It remains that the right to an effective remedy – a constitutional principle, also provided for in Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms – must guide the reflection as well as the useful effect of public participation.
It is important to note that a decree may, however, determine the category of acts, procedures and obligations for which the course of time limits resumes, or set a date for the resumption of the time limit provided that the persons concerned are informed “for reasons of protection of the fundamental interests of the Nation, security, health protection, public health, The “thawing” of the deadlines for the implementation of various environmental requirements has already been illustrated by Decree No. 2020-383 of 1 April 2020, which derogates from the principle of suspending deadlines during the period of health emergencies linked to the covid-19 epidemic. In view of the disputes from professionals in the real estate and construction sector concerning in particular the suspension of investigation deadlines or the extension of appeal deadlines, other exemptions in urban planning could thus be adopted by decree or through a new ordinance.
In terms of administrative deadlines and to prepare the conditions for the future recovery, increased vigilance is required, while the building and public works sector has already published a recommendation guide produced by the OPPTB on the measures to be implemented to ensure the necessary sanitary conditions for building and public works personnel called upon to work on building sites, for the continuity of construction activities.