Have you been issued with planning permission and had an appeal against it lodged with the Administrative Court?
You may be able to claim compensation for the damage you have suffered as a result of an unjustified appeal by an applicant against your planning permission.
The lawyers at Cabinet Goldwin will defend your interests and explain the remedies available to you.
Challenging building permits is an important part of the administrative jurisdiction’s litigation.
However, these legal actions can sometimes conceal unfair practices aimed at harming the beneficiary of the planning permission or ensuring that their own interests prevail.
With the aim of limiting abusive challenges to planning permission, the legislator has made it possible for any person who suffers damage as a result of such an action to take action against the person bringing the action if the action proves to be abusive.
In addition, since the ALUR Act of 24 March 2014, the beneficiary of a planning permission now has the choice of bringing his or her claim either before a court of law or before an administrative court.
First of all, what is an “abusive” appeal?
The Court of Cassation defines an ” abusive appeal ” as an appeal against planning permission that is not inspired by considerations relating to compliance with planning regulations.
Article L.600-7 of the French Town Planning Code states that an appeal is abusive ” when it is lodged under conditions that ” reflect abusive behaviour on the part of the applicant that causes prejudice to the beneficiary of the permit “.
- Holding the author of an abusive appeal liable before a court of law
Under article 1240 of the French Civil Code, the beneficiary of a building permit may seek compensation for the damage suffered as a result of an action for ultra vires before the ordinary courts.
Indeed, ” any act whatsoever by man that causes damage to another person obliges the person through whose fault it occurred to make reparation for it “.
The Court of Cassation has ruled that ” any fault in the exercise of a legal remedy is liable to engage the responsibility of its author “.
The burden of proof rests with the party claiming damages.
Because of the difficulties caused by the need to prove ” excessive ” prejudice, the ELAN Act of 23 November 2018 amended Article L.600-7 of the French Town Planning Code.
From now on, it will be sufficient for the beneficiary to demonstrate the existence of prejudice.
The case is referred to the Court by way of a writ of summons, which the lawyers at Cabinet Goldwin will draw up.
- Holding the author of the abusive recourse liable before the Administrative Judge
The possibility of reacting to an abusive action directly before the Administrative Judge represents an advantage in terms of time, since the Administrative Judge will issue his decision on the abusive action at the same time as the decision on the action for annulment.
In the case of a judicial review, you will have to wait for the administrative judge to rule on the legality of the planning permission.
In order for the judge to uphold your claim, you will need to demonstrate :
- Abusive behaviour on the part of the applicant
- Your own prejudice is directly linked to the abusive behaviour
HOW TO PROCEED?
The Goldwin firm’s lawyers draw up counter-claims in the form of briefs seeking damages for abusive proceedings.
These submissions are presented to the Judge as part of the main action to cancel the said permit.
Keep an eye on the current proceedings!
Counterclaims are only admissible if they can be linked to ongoing litigation.
What’s more, if you are aware of proceedings to have your planning permission cancelled and you believe that these proceedings are abusive and are causing you harm, don’t delay in contacting your lawyer.
Goldwin’s lawyers are quick to respond and have recognised expertise in abusive proceedings.
Note that this action is possible at first instance and on appeal, but is no longer possible at the cassation stage.
- What is the penalty if the appeal is deemed abusive by the judge?
Under the Code of Administrative Justice and the Code of Civil Procedure, the judge may impose a fine of up to 3,000 euros on the author of an application that he considers to be improper, regardless of the damages that may be awarded to the victim of the improper application.
In addition to this fine, the claimant must accurately assess the damage suffered as a result of the abusive recourse (financial damage resulting from the delay in implementing the project, loss of expenses incurred, financial costs linked to the lack of return on investment, moral and image damage, structural costs and lost time, etc.).
Goldwin’s lawyers will be with you every step of the way.
They demonstrate professionalism and recognised expertise in the field.
When you choose Goldwin, you can be sure that you will be assisted by responsive lawyers who will provide answers to your problems, but who will also be available to listen to you throughout the proceedings.
