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Case:
CE, Sect., 3 julliet 1998, p. 288 Case Bitouset
Date:
03 July 1998
Translated by:
Professor John Bell FBA
Copyright:
Professor B. S. Markesinis

Considering that, under the terms of art. L. 160-5 of the Planning Code:

“No compensation shall be paid for servitudes created within this Code…and especially those concerning the use of land, the height of buildings, the proportion of built-up surface area, the prohibition of construction in certain zones, the land adjoining the highway, and the allocation of buildings to different zones. All the same, compensation is payable if a material, direct and certain harms results from these servitudes an infringement of acquired rights or a modification of a prior state of the site.”

Considering that M. Bitouzet criticises the challenged decision for not having set aside these legislative provisions on the ground that they are incompatible with art. 1 of the additional protocol to the European Convention on Human Rights which provides that:

“Every natural or legal person is entitled to the peaceful enjoyment of his property. No one shall be deprived of his property except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions do not affect the right of States to implement laws which they judge necessary to regulate the use of property in accordance with the general interest.”

Considering that even if the provisions reproduced above are designed to ensure a fair balance between the public interest and the imperatives of the protection of the right of property, they leave for the legislator a wide margin of appreciation, in particular to conduct a planning policy, both to choose the manner in which such a policy is implemented and to judge whether their consequences are justified in the general interest by the need to realise the purposes pursued by the law;

Considering that, on the one hand, art. L. 160-5 of the Planning Code subjects the principle of non-compensation that it sets out to the requirement that these have been created by law, in order to achieve a planning policy complying with the general interest and respecting the rules of competence, procedure and formalities set out by the law; as, on the other hand, this article does not set out a general and absolute principle, but expressly provides for two exceptions concerning the acquired rights of owners and the modification of a previous state of the site; as, finally, the article does not prevent the owner whose property is burdened by a claimed servitude to compensation in this exceptional circumstance where the totality of the terms and circumstances in which the servitude has been created and implemented, as well as its content, make the owner bear a special and exceptional burden out of proportion with the general interest objective pursued; as, in such cases, the claimant is not justified in asserting that art. L. 160-5 of the Planning Code is incompatible with the provisions of art. 1 of the additional protocol to the European Convention on Human Rights;

Considering that it does not appear from the file submitted to the lower judges that the classification of the land of M. Bitouzet as not for construction within the urban plan of the commune of Béthement-la-Forêt has by its content or by the circumstances in which it arose imposed on the claimant a special and extraordinary burden out of proportion with the general interest justifications on which this planning document is based; as, in consequence, it is through an accurate assessment of the facts of the case, and contrary to what the claimant asserts, that the Cour administrative d’appel decided that M. Bitouzet did not have the right to compensation;

Considering that it follows from all that has been said that M. Bitouzet is not justified in claiming the annulment of the decision of 17 March 1994 of the cour administrative d’appel of Paris…

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