Big Brother is watching you - Council of State, October 14, 2016, n° 236.129
In purest Orwellian tradition, the Council of State has made it mandatory for neighbours of an urban planning project to actively monitor the holder of the permit in question, in order to ascertain whether the permit is likely to be implemented.
The Council of State’s case law requires that the applicant acts with due diligence when filing a petition seeking suspension due to extreme urgency (Council of State, July 11, 2014, n° 228.060, Hoeylaerts and Sergeant), with any lack of diligence resulting in the inadmissibility of the petition.
In the absence of a clear definition, it is not easy to define, in matters of urban planning, what is meant by the due diligence which the applicant must demonstrate when seeking suspension due to extreme urgency. In what circumstances, at what time, and within what timeframes is it appropriate to refer the matter to the courts?
The Council of State has, in a recent judgment (Council of State, October 14, 2016, n° 236.129, Gaillard), shed some light on this matter. It considers that the applicant must proactively check if and when the urban planning permit is likely to be implemented.
In this same judgment, the Council of State invited applicants, who do not receive assurance that the permit will not be implemented during the procedure, to file a petition seeking suspension at the same time as filing the petition seeking annulment.
The applicants would thus be free to file a petition for suspension under the emergency procedure, as authorised by Article 17 of the Consolidated Laws on the Council of State, if work starts before a judgment has been handed down on the petition for suspension, inadmissible failing that.
This judgment from the Council of State therefore ratifies the upholding of the previous system. Yet, the ratio legis of the 2014 reform was actually to put an end to this system … a missed opportunity?
Associated areas of specialisation: Proprety and urban planning