CAA of BORDEAUX, 5th chamber (training at 3), 09/02/2016, 14BX03289, unpublished in the Li collection | Legifrance

CE, 6 and 5th bedrooms met 17/01/2018, no. 398671

 

Built at 200 meters from the shore fifty years ago, the building the Signal located on the waterfront in the Gironde is now a few meters from a sandy dune that threatens to collapse, just 20 meters from the waves. Uninhabited since a decree of peril taken in 2014 by the Prefect of the region, the co-owners of the building have been trying to obtain reparation.

So far they have been dismissed from their demands. Today before the Council of State, the co-owners of the immovable wish to annul the decision No. 14BX03289 of the Administrative Court of Appeal of Bordeaux dated February 9, 2016, and to seize the Constitutional Council of a QPC relating to the Constitutionality of article L. 561-1 of the Environmental code.

This judgment and this decision of the Council of State raise essential points, the mayor's police power in the fight against the sea, as well as the role of the prefect in the Expropriation procedure (I), and the limits to the intervention of the Barnier Fund (II).

 

I. On the responsibility of the mayor and the prefect

Could the mayor's responsibility be committed under his police powers (art. L. 2122-2 CGCT) because of the absence of the construction of the dune cordon in the vicinity of the building?

The Administrative Court of Appeal replied in the negative, it dismissed the responsibility of the mayor of Soulac-sur-Mer under article 33 of the Law of 16 September 1807 which provides that:

"When it comes to building dikes at sea, or against navigable or non-navigable rivers or streams, the necessity will be recognized by the Government and the expenditure borne by the protected properties, in the proportion of their Interest in the work Except in the case where the government would think it was useful and just to give relief on public funds. »

The court states that this article merely allows the public authorities to provide if it deems it useful and just financial aid to the riparian owners who would be in the need to undertake protective work in particular against the sea. (CAA recital 11)

Article L. 2212-2 of the CGCT provides that:

"The purpose of the municipal police is to ensure good order, safety, safety and public health." It shall include:

(…) 5 ° The care to prevent, by proper precautions, and to stop, by the distribution of necessary relief, accidents and calamitous plagues as well as pollution of any kind, such as fires, floods, ruptures of dikes , landslides of land or rocks, avalanches or other natural accidents, epidemic or contagious diseases, animal disease, emergency provision of all assistance and relief measures and, where appropriate, the intervention of The higher administration; (…) »

Thus, the mayor of Soulac did not, by refusing to carry out the work requested, or ignored the provisions of article 33 of the Law of 1807, nor the provisions of article L. 2212 of the CGCT. In addition, the operations required to protect the building would have exceeded the cost and magnitude of proper precautions within the meaning of article L. 2212 of the CGCT. (CAA Recital No. 21)

Has the prefect made a manifest error of assessment by not making use of article L. 561-1 of the environmental code?

The Administrative Court of Appeal ruled on the potential manifest error of assessment of the prefect of Gironde who refused to proceed with the expropriation of public utility of residents on the basis of article L. 561-1 of the Environmental code. The Administrative Court of Appeal dismissed this plea:

"It appears from the documents in the record that since the years 1965-1970, the line of coast at the right of the Signal is declining, without any sign of stabilization to come. The good scientific knowledge, attested by the various reports attached to the dossier, of this natural phenomenon, whose regular evolution has been observed for nearly half a century and accentuated since the storm Xynthia, has allowed the enactment of Measures, already mentioned in paragraph 21, such as the establishment of a monitoring, alerting, evacuation system for residents of the building and a security perimeter, to ensure, well in advance of the risk in question, the safety of People. In these circumstances, the risk of marine flooding on the Signal building could not, at the date of the contested decision, be regarded as seriously threatening human lives within the meaning of the aforementioned provisions of article L. 561-1 of the Code of The environment. Consequently, it is only possible to dismiss the means which would be vitiated by a manifest error of assessment, the implicit decision of the prefect of the Gironde refusing to initiate the expropriation procedure provided for in that article. (CAA recital No. 33)

 

ii.  Expropriation and coastal erosion, an expected QPC.

Before the Council of State the Union of co-owners of the Signal requests, in support of the request for annulment of judgment No. 14BX03289 of the Administrative Court of Appeal of Bordeaux of 9 February 2016, to refer to the Constitutional Council the question of the conformity with the rights and freedoms guaranteed by the Constitution of the provisions L. 561-1 of the Environmental code:

' Without prejudice to the provisions laid down in article L. 2212-2 and article L. 2212-4 of the general code of local authorities, where a foreseeable risk of movement of land, or of land subsidence due to an underground cavity or a Marnière, avalanches, torrential or fast-rising floods, or marine submerge seriously threatens human lives, the state may declare the expropriation by itself, the communes or their groups, of property exposed to this risk of public utility, Under the conditions laid down in the expropriation code as a matter of public utility and provided that the means of safeguarding and protecting populations are more costly than expropriation benefits.

Under article L. 561-1 of the environmental code, which notably extended the competences of the Barnier Fund, by the National Environmental Commitment Act, to marine floods in particular to respond to the consequences of the storm Xynthia, Parliament does not appear to have wished to extend the expropriation regime to the risks associated with coastal erosion.

For the secondary union the Signal, if article L. 561-1 of the Environmental Code has the scope of excluding from their scope the risks associated with coastal erosion, these provisions méconnaitraient according to its terms, the principle of equality before the law And the right of ownership guaranteed by articles 6 and 17 of the Declaration of Human and Citizen rights, as well as the principle of prevention guaranteed by Article 3 of the Charter of the environment.

The Council of State in its decision of 17 January 2018 (a) in its last recital held that the question of the conformity of the provisions of article L. 561-1 of the Environmental code with the Constitution was of a serious nature which required a reference To the Constitutional Council on the priority question of constitutionality:

' Whereas the Administrative Court of Appeal of Bordeaux, by the contested judgment, confirmed the rejection of the request of the Union of co-owners of the building ' the Signal ', located (…), for annulment of the implicit decision of the prefect of the Gironde Refusing to initiate the expropriation procedure provided for in the aforementioned provisions of article L. 561-1 of the environmental code because of a risk of the collapse of this building following a coastal erosion phenomenon; Whereas these provisions must thereafter be regarded as applicable to this litigation; That they have not already been declared in conformity with the Constitution by the Constitutional Council; That the question of their conformity with the rights and freedoms guaranteed by the Constitution, in particular the principles of equality and the right of property guaranteed respectively by articles 6 and 17 of the Declaration of Human and Citizen rights, raises a issue of serious character; It is therefore necessary to refer to the Constitutional councils the priority question of constitutionality invoked; (EC Recital No. 4)

In this expectation, the Council of State decided to stay proceedings.

There is no doubt that this QPC will be a real turning point in the management of natural risks.

 

[1] «Southwest «Building the Signal has Soulec: The co-owners still dismissed», published on 9 February 2016 http://www.sudouest.fr/2016/02/09/immeuble-le-signal-a-soulac-33-les-coproprietaires-encore-deboutes-2268865-3193.php

[2] Priority issue of Constitutionality

[3] Law No. 2010-788 of 12 July 2010 on national commitment to the environment