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16/04/2020

[COVID-19] An Ordinance of 15 April 2020 improves the fate of planning permission during a state of emergency

Updated information, as of the date of publication of this article

The State of Health Emergency, introduced on 12 March 2020, by the Law of 23 March 2020, heavily penalized promotion, and thus construction and housing, notably by Ordinances 2020-305 and 306 of 25 March 2020.

An ordinance No. 2020-427 of 15 April 2020 modifies the most negative effects of the state of emergency on town planning authorisations, including their complete freeze, initially planned for 3 months.

All the temporal effects of the state of emergency are now shifted to its legal duration (currently from 12 March 2020 to 24 May 2020). The one-month increase (initially provided for as of 24 June 2020 by Ordinance No. 2020-306), is abolished.

With an end date of the state of emergency set on 24 May 2020, the new deadlines, since the new Ordinance of 15 April 2020, are from now on the following, for permit applications to be filed, or already filed:

  1. For permits obtained but not yet purged before 12 March 2020:

There are 2 cases, depending on whether the permit is posted before or after March 12, 2020:

  • – 1.1- Permits, which were obtained and posted before 12 March 2020:

The deadline for third party appeals is suspended from 12 March 2020 until 24 May 2020.

The period, which started to run from the posting, will resume on May 24, 2020, for the balance of the appeal period (but at least for 7 days). Thus, the period for appealing against a permit posted on 12 February 2020 ran for one month until 12 March 2020, and will resume for its balance, one month, from 24 May 2020, or until 24 June 2020 (and no longer until 24 August 2020 as mentioned in the first versions of the texts of the state of emergency).

In the case of a permit posted on 15 January 2020 that failed to be purged before 12 March 2020 the starting date of the state of emergency, whereas it still had three days left to do so. As of May 24, 2020, the permit will be purged 7 days later, on June 1, 2020 (as the balance of time was only 3 days, and the Ordinance of 15 April 2020 provided for a balance of time for appeal of 7 days). 

  • – 1.2- Building permits, posted from 12 March 2020:

Their deadline for appeal will start on 24 May 2020 (if the building permit (“BP”) was posted before that date) and they will be purged on 25 July 2020.

  1. With regard to permit applications being processed as at 12 March 2020,

All the current processing deadlines in force on 12 March 2020 (such as the one-month period, available to the processing department, for notifying or request documents; the deadlines for submitting opinions of the authorities, commissions and services consulted (SDIS; CC Accessibility; ABF …), whose consultations were launched before 12 March 2020) are suspended until 24 May 2020.

(Art 12 ter of the Ordinance No. 2020-306, resulting from the Ordinance of 15/04/20 No. 2020-427)

A suspension of time, means that as of May 25, 2020, the “balance” (and only the balance) of the current time period will restart.

  1. For permit applications filed since 12 March 2020 (or, for applications filed before 12 March 2020, but in which the authorities, commissions and services had not yet, as at 12 March 2020, been consulted for an opinion and which were due before 24 May 2020):

All the deadlines for processing (such as the one-month deadline for the processing authority to notify the processing deadline); and all the deadlines normally granted to services, authorities, commissions , not yet consulted by 12 March 2020, shall have their starting point postponed to 24 May 2020. (Art 12 ter new of Ordinance No. 2020-306).

A suspension of time, means that as of 25 May 2020, the “balance” (and only the balance) of the current time period, restarts. Thus, for a permit filed on 13 March 2020, with no processing period launched, the petitioner will know, between 25 May 2020 and 25 June 2020, if his/her file is considered complete and what the processing period will be.

  1. With regard to the permit files, which were almost entirely processed, and which were supposed to make it possible to obtain a tacit permit beyond 12 March 2020, in the absence of a response from the mayor:

The deadline for obtaining the tacit permit is also suspended.

Thus, a complete application submitted on 13 January 2020, subject to a 2-month processing period, could give rise (except for the provisions of Article R 424-2 of the Urban Planning Code, listing the cases of tacit refusal) to a tacit building permit (“BP”) on 13 March 2020.

By one day, because the tacit BP was to be obtained after the fateful date of 12 March 2020, the tacit BP could not be obtained on 13 March 2020, but on 25 May 2020, because the “balance” of the training period (1 day) starts running again on 25 May 2020.

In conclusion, these exceptional provisions authorise local authorities to refrain from processing and issuing urban planning authorisations between 12 March 2020 and 24 May 2020 (if the end of the State of Emergency remains set for 24 May 2020).

But the right not to process a permit file does not prohibit the processing.

The right not to issue a permit does not prohibit the issuance of a permit.

Hence, local authorities, while teleworking, and elected representatives can also make a substantial contribution to the national economic effort, by avoiding a diversion of the authorisations issued, in order to continue the essential production of housing.