The legal framework.
Wind projects, as installations classified for environmental protection (ICPE), are subject to an environmental assessment and environmental approval (Article L181-1 of the Environmental Act). This permit supersedes the building permit in accordance with Article R425-29-2 of the City Planning Code, but this does not exempt the petitioner from complying with the applicable city planning regulations.
Article D181-5 I 12° a) thus requires that the application for environmental approval must contain a certificate of compliance with the town planning regulations that apply on the date of the survey. But instruction is not a singular moment; it is an ongoing process which raises the need to adapt to possible legislative developments during this period.
A development of the PLU during instruction.
In a case presented to the Council of State, a petitioner had attached to his case a document justifying his wind project’s compliance with the PLU in force at the time the request was submitted. However, the processing of this request lasted more than three years, during which the PLU was changed.
The local municipality, which challenged the environmental approval, argued that the latter was illegal because the petitioner had not updated its case to prove the project’s compliance with the new PLU.
Reading of Article D181-5-2: two interpretations.
Faced with this situation, a question arises: should we interpret Article D181-5-2 of the Environmental Law literally, given that the certificate of conformity is only required at the time of filing the claim? Or, on the contrary, should we consider that the petitioner must update his case if the PLU changes during the investigation?
The State Council decided on a finalist interpretation. He determined that the examination of an environmental approval is an ongoing process, that it is on the day of the administration’s decision that the project’s compliance with the town planning regulations must be assessed. The petitioner must therefore, if necessary, update his case to take into account the new provisions of the PLU that were in force at the time of the decision.
Compliance with town planning regulations at the time of decision.
Thus, the State Council’s jurisprudence, especially confirmed by a judgment of 11 March 2020 (no. 423164), clarifies that the urban planning regulations in force on the day of the decision to grant environmental approval must be respected, and not those in force on the date of submission of the application.
This obligation to comply with town planning regulations does not only apply to wind farms, but applies to any land use!
In fact, Article L152-1 of the Town Planning Act reminds us of that
” construction must comply with the town planning regulations in force on the date on which the competent authority decides on the request “.
The duty to update the file.
This requirement to adapt the case during the study, although restrictive, is imposed on professionals who must follow the development of the urban planning documents. The impact of this obligation remains limited because project managers, such as companies in the wind energy sector, are used to interacting with the administration and following these changes as part of the procedure.
However, the Environment Act also allows for special cases. Article L181-9 allows the administrative authority to reject an application for environmental approval if the project is incompatible with the applicable urban planning regulations.
However, it is possible to submit an environmental approval request while the town planning regulations do not yet allow the project, provided that a procedure for amending or revising the PLU is underway. In this case, the permit will only be issued when the new rules are adopted, and the case must contain considerations or action formalizing this development procedure.
Conclusion.
The development of the PLU during the processing of an environmental approval request requires the petitioner to ensure that his file is updated. Compliance with the PLU must be assessed at the time of the administrative decision and not when the application is submitted.
This requirement, although it may seem complex, is part of a logic of continuity and adaptation of projects to the current legislative framework, guaranteeing that local developments are taken into account in land use planning.
