AMENDING PLANNING PERMISSION: A TOOL FOR PROPERTY DEVELOPERS

Amending planning permission

Current case law sets out the rules for amending planning permission.

On the one hand, it is a tool used by promoters to adapt a programme. On the other hand, amending planning permission is a regularisation tool used to purge appeals against the initial planning permission.

Amending planning permission: a tool for adaptation

The new case law clarifies the scope of amending planning permission. It modifies the conditions of legality required for its issue. (Conseil d'État, Section, 26/07/2022, n°437765, Published in the Recueil Lebon).

The solution is as follows:

In its ruling of 26 July 2022, the Conseil d'État ruled that amending planning permission could be granted when the nature of the project remains the same. In this case, the amending planning permission is sufficient and it is no longer necessary to submit a new planning permission application.

Prior to this ruling, the issue was whether the modifications called into question the overall design of the project.

From now on, a more flexible criterion will be applied, as amended planning permission may be granted. This will apply as long as the nature of the project remains unchanged.

At the sale in future state of completion, In addition to the above, it is important to specify that the purchaser must give his or her consent to the seller's application for amended planning permission and to the definition of the «nature of the project».

At the marketing stage of the development, particular attention must be paid to the powers given to the seller by the Purchaser, in the following areas VEFA. In fact, they need to be tightened up as part of the contract, taking even more account of the planned operation.

In addition to being a tool for modifying a programme, amending planning permission remains a solution for regularising the initial planning permission. This solution is now subject to change, however, following the position taken by the Conseil d'État in February 2023.

Amending planning permission: a tool for regularisation

A large number of appeals against the initial planning permission are resolved by obtaining an amending planning permission.

However, this method must now be assessed in the light of new case law. The Conseil d'Etat has extended the scope of appeals against amending planning permission. (Conseil d'État, Section, 17/02/2023, n°454284, Published in the Recueil Lebon)

The solution is as follows:

- Any amending planning permission could be challenged, by the applicants in the proceedings against the initial planning permission, as long as the judge has not ruled on the merits of the case; ;
- In this case, the amended planning permission can be contested without any time limit or formal requirements (supplementary submission or application attached to the initial file).

Thus, this ruling provides a broad opening of the interest to act against the planning permission permit. It accepts that the challenge to the amended planning permission should be lodged as part of the appeal against the original planning permission.

The absence of formal requirements and time limits reduces the advantage of amending planning permission. It opens up the possibility of appeal against any regularisation measures that may be taken during the proceedings.