PLANNING PERMISSION FOR A BUILDING OPEN TO THE PUBLIC (ERP)

Establishments open to the public (ERP)

Planning permission does not replace :

-or planning permission,

-No authorisation is required under the regulations governing establishments open to the public (ERP).

Lhe legality of planning permission is not subject to the prior issue of an authorisation for the creation of an ERP.

However, the building permit expressly mentions the obligation to apply for and obtain additional authorisation before opening to the public.

It does not matter whether the building permit application reveals that the petitioner is informed of this obligation.

Conseil d'Etat, 13 January 2023, no. 450446, OPH Paris Habitat

What you need to know (Establishments open to the public) :

Establishments open to the public (ERP): works authorisation procedures :

The creation, development or modification of a establishments open to the public (ERP) are subject to authorisation.

Authorisation can only be granted if the planned work complies with accessibility and fire safety regulations.

Exception:

As an exception, « when the interior layout of an establishment open to the public, or part of it, is not known when an application for planning permission is submitted »However, a building permit is not equivalent to authorisation to create a facility open to the public.

In this case, a specific additional authorisation is required.« requested and obtained for the building's interior fittings ".

Permission to create an ERP is not required if the interior layout of the premises is not known.

In the present case, the Conseil d'Etat censured the contested judgment in that :

-. the decision of 14 December 2018 of the Mayor of Paris is criticised

-having been issued without the additional authorisation required for establishments open to the public having been obtained beforehand.

In a previous decision by Ville de Paris and Paris Habitat, the Conseil d'Etat ruled that a building permit for an ERP whose interior layout was not known and which did not include the express mention of «a building that has been adapted to the needs of the public" was illegal.« the obligation to apply for and obtain additional authorisation before opening to the public »(CE, 23 May 2018, no. 405937).

This obligation is broadly understood:
 it is worth « even though the contents of the building permit application file show that the applicant is aware of this obligation »(same decision);
 a simple reference in the building permit to the opinion of the local accessibility committee is insufficient (CE, 25 November 2020, no. 430754).

However, these decisions do not resolve the question put to the Conseil d'Etat in the present case. It can be summarised as follows:

If the interior layout of a building has not yet been determined, should planning permission include a request for a «new building"?« creation »What does this mean? It is up to the petitioner to apply for authorisation at a later date«.« complementary »referred to in Article L425-3 of the Town Planning Code ?

The Conseil d'Etat answers in the negative:

There is no need to distinguish between a preliminary authorisation and a «preliminary authorisation".« creation »of the ERP, which would be followed by an authorisation«.« complementary »Once the interior layout of the building has been determined.

The term« additional authorisation »referred to in Article L425-3 of the Code de l'urbanisme is misleading. The Conseil d'Etat specifies that it is to be understood as an ERP authorisation complementary to the building permit issued... And not as an authorisation complementary to an authorisation for the creation of an ERP that has already been issued.

In reality, the term’ specific authorisation »The term has already been adopted in case law (CE, 25 November 2020, no. 430754 ; CE, 11 February 2022, no. 448357) is less ambiguous, since it does not suggest that a « complementary »should follow a request for authorisation«.« creation »of an ERP.

So when the interior layout of premises constituting a future ERP is not known, the planning permission may be validly issued without prior authorisation for the creation of an ERP, provided that the said permit expressly mentions the obligation to apply for and obtain additional authorisation before opening to the public.