The Civil Code defines the right of ownership as "the right to enjoy and dispose of things in the most absolute manner". However, in the name of the general interest and with a view to the rational and balanced development of urban areas, local authorities may exercise their prerogatives as public authorities in order to limit this right of ownership.
The right to build is regulated by a certain number of planning authorisations that sanction compliance with planning rules applicable to private individuals: local planning documents (PLU, subdivision regulations, etc.) or national regulations, as well as public utility easements.
The Ordinance of 8 December 2005 and the Decree of 5 January 2007, and more recently Ordinance no. 2011-1916 of 22 December 2011 and Decree no. 2012-274 of 28 February 2012, have reformed planning permission, in particular to reduce the number of authorisations required, provide a better framework for appraisal times, group procedures together and make it easier to compile applications.
The Planning Code now provides for three permits and a single declaration, compared with eleven permits and five declarations prior to these reforms.
Building permits, planning permission, demolition permits and prior declarations make up the current set of planning authorisations. NEW DEAL IMMOBILIER, an estate agency, takes a look at the procedure for issuing planning permission.
Contents :
I- Applying for planning permission A- The applicant 1) Applicant 2) Use of an architect B- Contents of the planning permission application II- The decision by the competent authority A- Examination of planning permission 1- The planning permission application Time limits for processing planning permission 2- Checking that the application complies with planning regulations B- Decision 1- Express decision 2- Tacit decision 3- Display of planning permission 4- Validity period for planning permission 5- Transfer of planning permission III- Checking that the work complies with planning regulations
I- Applying for planning permission
A- The applicant
1) The applicant
Since 1st October 2007, a prior declaration or application for planning permission may be submitted :
- By the owner of the property. All the applicant has to do is state that he is the owner. No proof of title is required. The case law theory of the apparent owner still applies. Case law has accepted that holders of a synallagmatic promise of sale or a unilateral promise of sale have this status.
In the case of joint ownership, a joint owner may submit his application alone, without the agreement of the other joint owners.
In the case of co-ownership, if the work relates to a private area, a co-owner may submit the application alone, whereas if the work relates to a common area, an authorisation from the other co-owners and a copy of the co-ownership regulations must be produced.
Finally, the Code de l'urbanisme does not prevent owners of separate but contiguous plots of land from submitting a single application for planning permission for the construction of one or more buildings on the said plots that form a single whole.
- The owner's agent.
The authorisation given by the owner is not subject to any formalities. It results from a private power of attorney, generally in favour of an architect or surveyor. The identity of the latter must therefore be indicated in the application.
- A person providing proof of a title authorising them to build for a person certifying that they are authorised by the owner to carry out the work.
It is sufficient for the applicant to provide proof of a simple certificate drawn up by the petitioner stating that he or she is authorised to carry out the work by the owner of the property.
This presupposes, however, that the person attesting to this fact is in possession of a document authorising him or her to carry out the building work. Otherwise, this would constitute fraud, which would render the permit illegal and could result in its withdrawal without any time limit.
- A person entitled to benefit from expropriation.
The expropriation procedure for reasons of public utility must be initiated for the permit to be validly issued.
2) Use of an architect
In order for planning permission to be issued, an architectural project must be drawn up by an architect, failing which the permission will be null and void. However, there are some exemptions.
This is the case for individuals or single-member EARLs who declare that they wish to build or modify, for themselves, an agricultural building with a floor area and a footprint not exceeding 800m², or a non-agricultural building with a floor area and a footprint not exceeding 170m².
The use of an architect is also not compulsory for work subject to planning permission relating exclusively to the layout and fittings of interior spaces, commercial buildings and shop windows, or which is limited to alterations that do not result in visible changes to the exterior.
In the case of extensions, an architect must be consulted if the construction project results in either the floor area or the footprint of the building exceeding the ceilings mentioned above.
B- Contents of the application for planning permission
Applications for planning permission or prior declarations must include a certain amount of information and documents in order to be admissible.
The information to be provided on the forms, for all types of application, is as follows:
- The identity of the applicant ;
- Declaration by the applicant that he meets the conditions of article R423-1;
- The location and surface area of the plot
- The nature of the work
No other information is required for planning permission or prior declarations relating to a development project.
However, other information is required depending on the type of permit:
For building permits :
- The identity of the project architect
- The purpose of the building
- The floor area of the proposed buildings, if applicable, broken down according to the different uses defined in article R. 123-9 of the Code de l'urbanisme (Town Planning Code)
- The electrical power required for the project, where the electrical power exceeds 12 kilovoltamperes single phase or 36 kilovoltamperes three phase;
- The details, set by decree, required to calculate the charges.
For demolition permits, the approximate date of demolition must be given.
For prior declarations relating to a building project, works, an existing building or a change of use of a building, the floor area and use of the proposed buildings must be indicated, where applicable, as well as the information required to calculate the charges, as laid down by decree.
For allotments, the maximum number of lots, the maximum floor area of the proposed building and, where the allotment is not covered by a PLU or equivalent document, the maximum floor area must be indicated.
For seasonal constructions, the period(s) of the year during which the construction is to be dismantled must be indicated.
Main documents to be submitted with the application:
Certain documents must be submitted with all applications: site plan, site layout plan.
However, the site plan is only required in the case of a prior declaration "derived" from planning permission if a new building is being created or the volume of an existing building is being altered.
For planning permission :
a) A plan showing the location of the plot within the municipality;
b) The architectural project including the documents mentioned in articles R. 431-8 to R. 431-12 of the Town Planning Code.
For planning permission :
a) A plan showing the location of the plot within the municipality;
b) The development plan including the documents mentioned in articles R. 441-3 and R. 441-4 of the Code de l'urbanisme.
For a prior declaration relating to a development project :
a) A plan showing the location of the plot within the municipality;
b) A summary plan of the site showing the buildings of all kinds on the plot;
c) A sketch and a three-dimensional dimensioned plan of the development showing, where applicable, the proposed division(s).
For a demolition permit :
a) A plan showing the location of the plot within the municipality;
b) A floor plan of the buildings to be demolished or, where applicable, preserved;
c) A photograph showing the building(s) proposed for demolition and how they fit into the surrounding area.
II- Decision by the competent authority
A- Appraisal of planning permission
The application for planning permission or prior declaration must be sent by registered post with acknowledgement of receipt, or lodged at the town hall of the municipality concerned by the work.
Prior declarations require two copies, compared with four copies for planning permission applications (building, development and demolition permits).
The mayor is obliged to forward the various copies to the appropriate party so that the application can be processed.
1- Time limits for processing planning permissions
Under the reform, applicants for planning permission are informed of the time taken to examine their application as soon as they submit their file. If the application is incomplete, the authorities may request the missing documents within one month of submission. In this case, the review period will begin on receipt of the additional documents. On the other hand, if the authorities contact the applicant after the one-month deadline, the processing period will not be interrupted.
The standard timeframes for processing planning permission are as follows:
- One month for prior declarations ;
- Two months for applications for demolition permits and for building permits for detached houses, as defined in Title III of Book II of the Construction and Housing Code, or their annexes;
- Three months for other building permit applications and applications for planning permission.
In some cases, these deadlines may be extended. In such cases, the authorities must inform the applicant within one month of the application being submitted.
2- Checking compliance of the application
Planning permissions allow for checks to be carried out, a priori in the case of permits and a posteriori in the case of prior declarations, to ensure compliance with planning regulations.
This control of the conformity of works and developments is limited to town planning rules and not to private relationships. The authorities will not check whether there are any obstacles linked, for example, to private rights of way or non-construction easements. The authorities will point out that planning permission is issued subject to the rights of third parties: they will check that the project complies with planning rules and easements. It does not check whether the project complies with other regulations and rules of private law. Any person who feels that their rights have been infringed by the disregard of property rights or other private law provisions may therefore take their case to the civil courts, even if the planning permission complies with planning regulations.
B- Decision
1- Express decision
The competent authority takes a decision on the planning application by means of an order or, in the event of opposition or requirements, on the prior declaration.
This order must include a number of details, in particular the reasons for the decision in the event of refusal.
It must also specify, where applicable, the amount and method of assessment of any contributions payable by the beneficiary of the permit.
The decision must be notified directly to the applicant by registered letter with acknowledgement of receipt or by electronic transmission, if the decision provides for a contribution or specific requirements.
If there are no special contributions or requirements, the order may be notified by ordinary mail.
The date on which the decision becomes enforceable must be stated in the order.
2- Tacit decision
The reform of town planning authorisations established the principle that silence on the part of the competent authority during the examination period is deemed to constitute a decision not to oppose for prior declarations and a tacit permit for building permits, development permits or demolition permits.
However, the cases provided for in articles R424-2 et seq. of the Town Planning Code require express authorisation.
3- Displaying planning permission
Once planning permission has been obtained, the decision must be posted on the site. This posting, carried out by the beneficiary of the authorisation, must be visible from the outside and must last for the duration of the worksite.
When the site is opened, the beneficiary of the building or development permit must send three copies of a declaration of the opening of the site to the local mayor. The poster must mention the obligation to notify the author of the decision and the beneficiary of the permit or of the decision on the preliminary declaration of any administrative appeal or legal action.
In addition, within eight days of the express or tacit issue of the authorisation, an extract of the declaration is published by posting it at the town hall for a period of two months. An order issued by the Minister responsible for town planning regulates the content and form of the notice.
A third party may lodge a legal appeal against the permit or the decision not to oppose a prior declaration from the first day of a continuous period of two months of posting at the property.
4- Period of validity of planning permission
The reform of planning permission has standardised the expiry periods for planning permission, providing for a two-year period of validity. Planning permission or a decision not to oppose a prior declaration will only lapse once this period has elapsed and if the work has been interrupted for more than a year. Any appeal against the planning permission will result in the suspension of the time limits until notification of the irrevocable court decision.
5- Transferring planning permission
Where planning permission is legal and still valid, its transfer to a new beneficiary is in principle automatic.
III- Checking conformity of works
Before the reform of planning permission, a certificate of conformity was issued by the authorities. Now, the applicant is responsible for submitting a declaration of completion of the work.
This declaration of completion and conformity of the work is signed by the beneficiary of the building or development permit or of the decision not to oppose the prior declaration, or by the architect or architect's architect, if they have supervised the work.
It should be sent by registered post with acknowledgement of receipt to the mayor of the municipality, or deposited at the town hall in return for a receipt.
Once the declaration has been received, a period of three months begins, during which the competent authority may contest the conformity of the work. This period is extended to five months when the work must be completed, i.e. :
- When the work concerns a building listed as a historic monument in application of article L. 621-25 of the French Heritage Code, or when it is located in a safeguarded area created in application of article L. 313-1 of this Code or in a site listed or classified in application of articles L. 341-1 and L. 341-2 of the French Environment Code; it is then carried out in liaison with the Bâtiments de France architect or, where applicable, the representative of the minister responsible for historic monuments or the minister responsible for sites;
- When the work is subject to the provisions of articles R. 122-1 to R. 122-29 of the French Construction and Housing Code relating to high-rise buildings, or to the provisions of articles R. 123-1 to R. 123-55 of the French Construction and Housing Code relating to establishments open to the public; in this case, it is carried out in liaison with the departmental director of the fire and rescue services, except when the establishments open to the public in category 5 do not have accommodation premises;
- When the work is carried out either within an area destined to be classified as part of a future national park, the creation of which has been taken into consideration in application of article R. 331-4 of the Environment Code, or within the core area of a national park delimited in application of article L. 331-2 of the same code, or within a nature reserve created in application of article L. 332-1 of the same code;
- When the work is carried out in an area covered by a plan for the prevention of foreseeable natural risks or by a plan for the prevention of technological risks drawn up in application of the Environmental Code, or by a plan for the prevention of mining risks drawn up in application of the Mining Code. However, it is not compulsory to complete the survey when the prevention plan does not impose any rules other than compliance with para-cyclonic or para-seismic standards or the obligation to carry out a preliminary study to determine the suitability of the land for the construction given its intended use.
During the above periods, the authorities may check that the work complies with the regulations and, if no objections are raised, they must issue a certificate stating that no objections have been raised.
If the work does not comply, the authorities will give formal notice to the applicant to rectify the situation. Either new work will be carried out to bring the situation into compliance, or an application for an amending permit will have to be submitted.