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15 May 2020
Impacts of Ordinance No. 2020-306 of 25 March 2020 on the extension of elapsed time-limits during the public health emergency period on the adaptation of procedures during the same period in terms of urban planning and commercial planning
Version updated on 15 May 2020
As a result of the initial wording of Ordinance No. 2020-306 of 25 March 2020 relating to the extension of time-limits during the public health emergency period and the adaptation of procedures during the same period, time-limits to challenge administrative decisions ("délais de recours") before the administrative courts had been significantly extended, as were time-limits to review applications ("délais d'instruction").
Indeed, it established a very long "legally protected period" of suspension or extension of delays and measures, starting from 12 March 2020 and until "the expiry of a period of one month from the end date of the state of health emergency".
Real estate industry players rapidly deemed these measures - many of which are applicable to urban planning procedures - as excessive and in conflict with reviving the economic activity as soon as possible, following the end of the public health crisis, and especially the construction sector.
Sensitive to these arguments, the Government adopted a new Ordinance No. 2020-427 on 15 April 2020 containing various provisions relating to time-limits to deal with the Covid-19 epidemic, which adjusts and complements the provisions of Ordinance No. 2020-306 of 25 March 2020, notably with regard to town planning and commercial planning.
In particular, the Ordinance of 25 March 2020 is supplemented by Title II Bis prescribing special provisions relating to public inquiries and time-limits applicable to urban planning and development and construction (addition resulting from Ordinance no. 2020-460 of 22 April 2020, discussed below)..
Two major amendments contained in the Ordinance of 15 April 2020 were to be noted:
This Ordinance was supplemented by Ordinance No. 2020-460 of 22 April 2020. Article 23 introduced new urban planning measures. Notably, the Government could now decide - by decree - that the time limits for the examination of the planning permission should start running again. Similarly, authorizations to open, re-open, occupy as well as construction work authorizations on establishments receiving the public ("établissements recevant du public"), mid-rise buildings or high-rise buildings now benefit from the rules applicable to time-limits for planning permissions.
However, in anticipation of the extension of the state of public health emergency until 10 July inclusive, and in order to safeguard the objective of a quick recovery of the construction sector, the Government has adopted Ordinance No. 2020-539 of 7 May 2020 determining specific time limits applicable in the area of planning, development and construction during the period of health emergency. This ordinance fits with the resumption of the time limits for appealing against and examining planning permission, as well as the duration of the work, the termination of the state of health emergency in maintaining the initial date of resumption of these periods at 24 May 2020 (hereinafter "the derogation period"). It also extends the benefit of these derogation provisions to actions against acts prior to obtaining planning permission ("activities" approval, the opinion of CDAC (France's local commissions for commercial development, or Commissions Départementales d'Aménagement Commercial) on commercial urban planning) and the rules for the withdrawal of these authorisations.
More broadly, in light of the economic activity resumption from 11 May onwards, it became apparent that referring to the end of the state of public health emergency to set the legally protected period was no longer justified.
The Government therefore adopted a new Ordinance No. 2020-560 of 13 May 2020 setting time-limits applicable to various procedures during the state of public health emergency period. The effect of the Ordinance is inter alia, to replace the sliding date for the end of the legally protected period with a fixed date - 23 June 2020 at midnight - , which was the initial date for the end of the legally protected period, prior to the extension of the state of public health emergency to 10 July 2020.
The Ordinance also prolongs the period of extension of the validity of town planning and commercial planning permissions from two to three months from 24 June 2020.
Finally, the Ordinance crystallises the suspension of public consultation and participation procedures end date to 30 May 2020.
The present note is therefore updated to take into account all these changes.
Thus, depending on the deadlines and measures set out below, reference should be made to :
The time-limits to appeal ("délais de recours") or refer to the préfet ("déféré préfectoral") a decision of non-opposition to prior declaration ("décision de non-opposition à déclaration préalable") or a building, development or demolition permit, that have not expired are suspended until the 24 May 2020 for the remaining limitation period as of 12 March 2020, provided that this period is at least seven days long.
However, the starting point of the time-limits to appeal a decision, which should have started running between 12 March and 23 May 2020 is postponed until 24 May 2020.
Therefore:
It should be pointed out that this time-limits' extension seems likely to also benefit ex gratia appeals, since Article L. 411-2 of the French Code of Public-Administration Relations provides that any administrative decision may be the subject, within the time-limit granted for lodging a contentious appeal, of an ex gratia or hierarchical appeal which interrupts the course of that time-limit.
Finally, the ordinance of 7 May 2020 shall apply to the derogation provisions:
For example, in the event of an "activities" approval published on 12 February 2020, the period after which the CDAC will have of which it is no longer possible to bring an action would have expired in principle on 13 April 2020, i.e. during the period of a health emergency.
Taking into account the suspension of the time limits provided for in the ordinance, the time-limit for submitting an appeal was suspended as of 12 March and will restart on 24 May for the remaining period.
Similarly, in the case of a favourable opinion from CDAC, for which the period for appeal began to run on 12 February, the time-limit after which it is no longer possible to bring an action would have expired in principle on 12 March 2020, i.e. during the period of a state of public health emergency.
Given the suspension of the time limits provided for in the Ordinance, the time limit for challenging a decision was suspended as of 12 March 2020 and will restart on 24 May 2020, for an incompressible period of seven days.
The ordinances of 15 April and 7 May 2020 do not specifically address time-limits for notifying appeals ("délai de notification des recours") against planning permissions. Thus, article 2 of the Ordinance of 25 March 2020 should apply.
According to this Article, as prescribed by law or regulation, for the appeal to be admissible, notifications that should have been completed between 12 March and 23 June 2020 inclusive are deemed having been duly made provided that they have been made within the legally prescribed time-limit, following the end of this legally-protected period, subject to a two-month limit.
In this event, the time-limit of fifteen clear days following the filing of the appeal, provided for in Article R. 600-1 of the French Urban Planning Code, is therefore extended from 24 June 2020.
In other words, if an appeal against a planning permission was lodged on 10 March 2020, the appellant should have notified - as provided for in Article R. 600-1 of the French Urban Planning Code - the authority which issued the permission and the holder of such permission at the latest on 25 March 2020 at midnight.
Pursuant to the Ordinance's provisions, the fifteen-day time-limit will be calculated as of 24 June 2020. The appellant will therefore have until 9 July 2020 midnight to notify the appeal.
Similarly, if an appeal against a planning permission is lodged on 10 April 2020, notification of the appeal may also be deferred until 9 July 2020 midnight, as the time-limit for notification expires within the legally-protected period.
On the contrary and paradoxically, if an appeal against a planning permission is lodged on 15 June 2020, notification of this appeal must be made within 15 days from that date, namely 30 June 2020 at midnight at the latest, since the time-limit for notification expires after the end of the legally-protected period.
The same postponement of time-limits' principle should apply to the obligation to notify, within five days of its submission to the CNAC (France's national commission for commercial development appeals, or Commission Nationale d'Aménagement Commercial), the appeal against a decision or opinion of the CDAC (France's local commissions for commercial development, or Commissions Départementales d'Aménagement Commercial) provided for in Article R. 752-32 of the French Commercial Code: notification of this appeal could also be postponed until 28 June 2020.
The extension of the time-limits provided for in Article 2 of the Ordinance should also apply to the one-month time-limit granted by Article L. 600-8 of the French Urban Planning Code for recording transactions whereby a person who has applied to, or intends to apply before the administrative court for the cancellation of a building, demolition or development permit undertakes to withdraw this appeal or not to lodge an appeal in return for the payment of a sum of money or the granting of a benefit in kind.
Transactions that were to be registered between 12 March and 23 June 2020 inclusive may therefore be registered until 24 July 2020.
Article 3 of the Ordinance provides that the validity of planning permissions - i.e. the period within which authorised works must begin - and of commercial operation permissions ("autorisations d'exploitation commerciale") - i.e. the period within which sales outlets must be opened to the public and/or permanent customer withdrawal points ("les points permanents de retrait à la clientèle") – that are due to expire between 12 March and 23 June inclusive, are automatically extended until the expiry of a period of three months "following the end of this period", i.e. until 24 September 2020.
However, a planning permission whose period of validity expired before 12 March 2020, or which will expire after 23 June 2020, may not benefit from the Ordinance's validity extension period.
The time-limits for reviewing planning permission's applications and town planning certificates are suspended as of 12 March 2020 and will start running again, for the remaining limitation period, as of 24 May 2020.
With regard to planning permission's applications, town planning certificates and prior declarations which time-limit to review the application should have started running between 12 March 2020 and 23 May 2020, the starting point is postponed to 24 May 2020.
Article 12 ter also covers applications for the extension of planning permission's ("demandes de prorogation des autorisations"), which are provided for in Book IV of the French Urban Planning Code.
Therefore, no permission can be obtained by tacit agreement during this period, nor can a refusal be made tacitly.
Article 12 ter specifies that this time-limits suspension during the derogation period also applies to time-limits granted for the collectivités territoriales and their établissements publics, public bodies, authorities or commissions to issue an opinion or give their approval in connection with a planning permission's review.
For instance, the time-limit to review a planning permission's application for building in the vicinity of a historic monument, is in principle four months and the Architecte des Bâtiments de France (ABF), then consulted, must render its opinion within two months of the receipt of the complete application.
Let us assume such an application was filed on 12 February 2020 and submitted to the ABF the same day. The time-limit to review the planning permission's application has run for a month and has been suspended since 12 March 2020 until 23 May 2020. It will resume, for the remaining limitation period of three months, on 24 May 2020. ABF will have a further month from 24 May 2020 to render its opinion.
It should be noted that the regulatory power may now also provide by decree for the resumption of time limits under the conditions set by article 9 of Ordinance of 25 March 2020, i.e. for reasons of protection of the fundamental interests of the Nation, security, protection of health, public health, preservation of the environment and protection of children and young people,
With regard to commercial operation permissions ("autorisations d'exploitation commerciale"), the position will vary depending on whether the project requires a planning permission.
Should the project require a planning permission, this will be recognised as a commercial operation permission. The time-limit for reviewing the application for this permission, as the time-limit granted to CDAC or CNAC to render its opinion on the commercial aspect of the permission, are suspended since 12 March but will start running again from 24 May 2020.
However, and paradoxically, should the project not require a planning permission, then Article 7 of the Ordinance of 25 March 2020 is applicable, and not Article 12 ter. In this event, time-limits for CDAC or CNAC to review the applications already running as of 12 March 2020 are suspended until 23 June 2020.
Thus, no "autonomous" commercial operation permission can be obtained by tacit agreement before 24 June 2020.
In contrast to the rules applicable to "stand-alone" commercial operating authorisations, the Ordinance of 23 April 2020 aligned the authorisation rules for "autonomous" ERP, MRB and HRB on the rules of those included in the planning permission.
Thus, in all cases, the time required to process opening, reopening, occupancy and work authorisations on ERPs, MRBs or HRDs is shorter than the time required to process a building permit and work is suspended as of 12 March but will start running again on 24 May 2020.
Ordinance No. 2020-539 of 7 May 2020 specifies that article 12 ter also applies to the time-limits set for the administration to verify the completeness of a file or to request additional documents as part of the investigation.
The time-limit for requesting additional documents, which is in principle one month from receipt of the planning permission's application, shall therefore be suspended as of 12 March 2020 and will start running again from 24 May 2020, for the remaining limitation period.
Let us recall that the time-limit for examining planning permissions only starts running on receipt of the complete application.
Therefore, a planning permission's application submitted on 11 March 2020, could, in theory, be subject to a request for additional documents until 23 June 2020. The time-limit to review the planning permission's application shall thus only start running once the additional documents - which themselves must be submitted within three months following such a request - have been received.
The Government has heard the appeals of those involved in the real estate sector and is now extending the deadline for withdrawing planning permission's applications ("délai de retrait des autorisations d'urbanisme") from the rules of article 12 ter and no longer those of article 7 of the Ordinance of 25 March 2020 .
Therefore, the (not clear-day) time-limit for withdrawing planning permission's applications is also suspended as of 12 March 2020 and will resume, for the outstanding limitation period, on 24 May 2020.
Similarly, regarding permissions and prior declarations which time-limit for withdrawal was to start running between 12 March 2020 and 23 May 2020, the start date is postponed to 24 May 2020.
Therefore:
Article 12 ter provides for a shorter legally-protected period for both the works' compliance inspection procedure ("procédure de récolement") and time-limits for appeals, ending 23 May 2020, regardless of the end-date of the state of public health emergency.
Thus, the time-limit - of three or five months as appropriate - granted to the administration to challenge the conformity of the works is suspended as of 12 March 2020 and will resume, for the remaining limitation period, on 24 May 2020.
Similarly, regarding permissions and prior declarations which works' compliance inspection ("délai de récolement") should have started running between 12 March 2020 and 23 May 2020, the starting point is postponed to 24 May 2020.
Lastly, Article 8 of the Ordinance suspends the time-limit available to the project owner to file a modification or to ensure the works compliance with the planning permission, in the event that the administration has issued a formal notice to do so as part of its works' compliance inspection. This time-limit will only resume, for the outstanding limitation period, on 24 June 2020.
We note, however, that the Ordinance of 15 April 2020 introduces another paragraph to Article 8, which henceforth allows the administrative body to exercise its jurisdiction - notably to prescribe that works be made to comply with the planning permission - within the time-limit it determines. In any event, the administrative body must take into account the state of health emergency's constraints, in determining obligations and time-limits to be met.
The Ordinance of 25 March 2020, amended by the Ordinances of 15 April 2020 and 13 May 2020 provides for adjustments to public inquiries.
For inquiries of a national scope and urgent nature already underway on 12 March 2020, or to be held between 12 March and 30 May 2020, where the delay resulting from the interruption of the public inquiry or the impossibility of carrying it out due to the state of health emergency is likely to have consequences that are difficult to remedy, the authority empowered to organise the public inquiry may provide for the public inquiry to continue by electronic means only and adapt the duration of the public inquiry accordingly. The empowered authority may also provide from the outset for the organisation of a public inquiry to be conducted by electronic means alone.
In cases where the duration of the public inquiry exceeds 30 May 2020, the authority empowered to organise it may decide to revert to the usual procedures as from that date.
In any event, the public shall be informed of any decision taken pursuant to the aforementioned article, by any means compatible with the state of public health emergency.
With regard to other public inquiries, that is to say the vast majority of them, as well as public participation procedures ("procédures de participation du public"), the Ordinance of 15 April 2020 clarifies their regime: the time-limits for public consultation or participation are suspended as from 12 March 2020 until 30 May 2020 inclusive. Thus, they will resume on 31 May 2020.
With regard to participation by electronic means as stipulated in Law No. 2018-202 of 26 March 2018 relating to the organisation of the 2024 Olympic and Paralympic Games, it is provided that the time-limits - which had been suspended from 12 March 2020 - will resume as of the entry into force of Order No. 2020-427 of 15 April 2020, namely as of 17 April 2020.
We note that the Ordinance of 13 May 2020 specifies that time-limits relating to notices, acts, procedures allowing the execution of development operations, works and real estate projects necessary for the preparation, organisation and hosting of the 2024 Olympic and Paralympic Games, will resume as of 24 May 2020.
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