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Case:
CE, Ass., 28 mai 1971, p. 409 Case Ministre de l’Equipement et Logement v. Fédération de défense des personnes concernées par le projet actuellement dénommé Ville Nouvelle Est
Date:
28 May 1971
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

Conseil d’Etat

Application by the Minister of Equipment and Housing for annulment of a decision of 30 July 1969 whereby the Lille Administrative Tribunal annulled as ultra vires his order of 3 April 1968 declaring that, in view of the construction of the East town at Lille, it was a matter of state requirement in the public interest to acquire the vacant or built-up lots necessary for the housing development scheme with its adjacent amenities including social and cultural facilities;

Having seen the Ordinance of 23 October 1958; Decree no. 59-680 of 19 May 1959; Decree no. 59-701 of 6 June 1959; the Ordinance of 31 July 1945 and the Decree of 30 September 1953;

Considering that under the provisions of article 1 of 59-701 of 6 June 1959 setting out the administrative framework for procedure at enquiries preceding a declaration of state requirement, identification of the parcels to be expropriated, and the order for their transfer,

‘The expropriating authority applies to the Prefect to have provided for the enquiry a record which must contain the following: (I) where the state requirement declaration is required in order to carry out works or construction: (1) an explanatory notice setting out the object of the proposal; (2) site plan; (3) general plan of the works proposed; (4) the principal features of the main structures; (5) a summary estimate of cost. (II) Where the state requirement declaration is required in order to acquire buildings: (1) an explanatory notice setting out the object of the proposal; (2) site plan; (3) boundary line of the buildings to be acquired; (4) summary estimate of expected acquisitions;

Considering that these provisions distinguish, as regards the contents of the record provided for the enquiry preceding a declaration of state requirement, on the one hand, in its paragraph 1, the case where the object of the expropriation is to carry out works or construction, and on the other hand, in its paragraph 2, the situation where the only purpose of the expropriation is to acquire buildings;

Considering that, while the creation of a new town normally involves both the acquisition of land and the carrying out of work and structures by the public body selected to acquire the land, the executive may limit itself to effecting in the first phase just the acquisition of the land, instead of carrying out both operations at the same time, when it was clear at the opening of the enquiry preceding the declaration of state requirement that, in the absence of the necessary factors, the schemes of work and construction were not sufficiently advanced; that in such a case the enquiry record may contain only the documents required by paragraph II of article 1 of the Decree of 6 June 1959;

Considering that it emerges from the documents in the record that by 23 September 1967, the date of the prefectural order opening the enquiry needed for a declaration of state requirement for the necessary acquisition of buildings in order to construct the new town East Lille, the executive had only an outline scheme for the development and planning of the new town; in particular there had been no detailed studies of the layout and features of the proposed university buildings nor of road access; that therefore the executive was not in a position at the date above-mentioned a general plan of works or the features of the most important constructions; that hence it could, as it did, confine itself to the acquisition of the necessary land and in consequence could quite lawfully provide the enquiry preceding the declaration of state requirement with only the documents listed in article 1 paragraph II of the cited Decree of 6 June 1959;

Considering that it follows from the foregoing that the Administrative Tribunal was wrong to base its decision on the absence from the enquiry record of certain documents required by paragraph (a) of article 1 of this Decree in order to annul, for procedural irregularity, the above-mentioned order of the Minister of Equipment and Housing;

Considering however that it is for the Conseil d’Etat, seised by reason of the appeal, of the whole dispute, to examine the other grounds put forward by the Fédération de défense des personnes concernées par le projet actuellement dénommé Ville Nouvelle Est;

On the jurisdiction of the Minister of Equipment and Housing to declare the operation to be a matter of state requirement; -

Considering that it follows from the provisions of article 2 of Ordinance of 23 October 1958 and of article 1 of Decree no. 59-680 of 19 May 1959 that, so long as the report of the enquiry inspector was favourable, the Minister of Equipment and Housing had power to declare the acquisition of the land needed for the new town to be matter of state requirement; that although by the said article 1 of the Decree of 19 May 1959 the construction of a motorway must always be declared to be a matter of state requirement by a Decree in the Council of State, the ground of complaint based on the presence of such a road in the new town plans lacks a factual basis; and that although part of the land to be acquired is for higher education facilities, no law or regulation requires the Minister of National Education to sign the Order declaring the acquisition a matter of state requirement;

On the enquiry procedure; Considering that article 2 of the Decree of 6 June 1959, according to which, ‘the Prefect issues an order nominating an enquiry inspector or an enquiry commission’, leaves the Prefect free to choose one or the other; that the application Federation is thus not justified in maintaining that, because of the importance of the operation, a commission should have been set up;

Consdering that it emerges from the documents in the record that the provisions of article 2 of the Decree of 6 June 1959 on the publication of the Order setting up the enquiry have been respected; that no law or regulation provides that the inspector’s report which, under articles 8 and 20 of this Decree, is forwarded to the Prefect or Assistant Prefect, must be communicated to the person affected by the expropriation proceedings;

Considering that it does not appear from the documents in the record. as alleged by the applicant Federation, that there are serious inaccuracies in the estimate of the cost of the acquisitions of land and buildings annexed to the report of the enquiry;
On the state requirement of the operation; Considering that a project may not lawfully be declared to be a matter of state requirement unless the infringements on private property, the financial cost and the possible disturbance of the social surroundings which it entails are not excessive measured against the needs which it fills;

Considering that it emerges from the documents annexed to the record that the development of the area covered by the declaration of state requirement has been designed so that the university buildings to be located there will not be separate from the residential quarters; that the executive proves that, to carry out such a development, it had to include in the area a certain number of parcels of land with buildings which had to be demolished; that, in these circumstances, and having regard to the overall size of the project, the fact that its realization involves the disappearance of a certain number of dwelling-houses is not enough to prevent the project from being a matter of state requirement;

On misuse of power; Considering that the alleged misuse of power has not been made out

(Annulment of the judgment; rejection of the claim put forward by the Fédération de défense des personnes concernées par le projet actuellement dénommé Ville Nouvelle Est)

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