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Case:
Prefect of Alpes-Maritimes; South-East Waste Disposal Company
Date:
28 February 2001
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

Conseil d’Etat

The Conseil d’Etat in dispute resolution
(litigation section)

On the report of the 6th sub-section of the litigation section

Having seen (1) the application, numbered 229562, filed the 25 January 2001 with the litigation secretariat of the Conseil d’Etat on behalf of the Prefect of Alpes-Maritimes; the Prefect of Alpes-Maritimes requests the Conseil d’Etat to order a stay of enforcement of the order of 18 January 2001 whereby the interlocutory judge of the Nice Administrative Tribunal suspended enforcement of his decision dated 17 October 2000 authorizing the South-East Waste Disposal Company to run a household waste tip at the locality ‘Vallon de la Glacière’ within the commune of Villeneuve-Loubet;

Having seen (2) the application, numbered 229563, filed the 25 January 2001 with the litigation secretariat of the Conseil d’Etat on behalf of the Prefect of Alpes-Maritimes; the Prefect of Alpes-Maritimes requests the Conseil d’Etat:
1) to annul the order of 18 January 2001 whereby the interlocutory judge of the Nice Administrative Tribunal suspended enforcement of his decision dated 17 October 2000 authorising the South-East Waste Disposal Company to run a household waste tip at the locality ‘Vallon de la Glacière’ within the commune of Villeneuve-Loubet;
2) to make an order under article L 761-1 of the Administrative Justice Code requiring the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Martine Digue, to pay to the State the sum of 35,000 francs;

Having seen (3) under number 229721, the summary application and complementary particulars filed the 30 and 5 February January 2001 with the litigation secretariat of the Conseil d’Etat on behalf of the South-East Waste Disposal Company; the South-East Waste Disposal Company requests the Conseil d’Etat
1) to annul the order of 18 January 2001 whereby the interlocutory judge of the Nice Administrative Tribunal suspended enforcement of the decision of the Prefect of Alpes- Maritimes dated 17 October 2000 authorizing the Company to run a household waste tip at the locality ‘Vallon de la Glacière’ within the commune of Villeneuve-Loubet;
2) to stay enforcement of the said order;

Having seen the other documents of record;

Having seen the Environment Code;

Having seen Act no. 76-663 of 19 July 1976;

Having seen Decree no. 77-1133 of 21 September 1977;

Having seen the Administrative Justice Code;

Having heard in public session:
- the report of Madame Legras, Auditeur.
- the observations of the firm Messrs Peignot, Garreau counsel for the Prefect of Alpes Maritimes, of the firm Lyon-Caen, Fabiani, Thiriez counsel for the the South-East Waste Disposal Company;
- the submissions of Mr. Seban, Government Commissioner;

Considering that by an Order dated 18 January 2001 the interlocutory judge of the Nice Administrative Tribunal suspended enforcement of the decision dated 17 October 2000 whereby the Prefect of Alpes Maritimes authorized the South-East Waste Disposal Company to run a household and final waste tip at the locality ‘Vallon de la Glacière’ within the commune of Villeneuve-Loubet; that the above-noted applications, whose submissions and grounds have been adopted by the Minister for Regions and the Environment, thereby ratifying the motions put forward in the name of the State, and those of the South-East Waste Disposal Company, are directed against that order; that it is appropriate to join them in order to dispose of them by a single decision;

Considering that article L 521-1 of the Administrative Justice Code provides as follows: ‘Where an executive decision, even one rejecting an application, is the object of an application to annul or amend it, the interlocutory judge, seised of a request thereto, may order the suspension of enforcement of that decision or of some of its effects, where it is a matter of urgency and where some ground is shown at the investigatory stage which casts serious doubt on the lawfulness of the decision. . .’

Considering that the urgency of the situation justifies the suspension of an executive act where its enforcement infringes, seriously and at once, a public interest in the situation of the applicants or in the matters which he intends to defend; that it is within the power of the interlocutory judge to assess as a matter of fact, and taking into account the issues put forward by the applicant, whether the effects of the act in dispute are such as to give rise to an emergency justifying the immediate suspension of the enforcement of the decision, without waiting for a decision on the merits; that he also has the power, where the emergency is clear in the light of all the facts of the particular case, to include in his decision all the elements which, having particular regard to the arguments of the parties, led him to believe that the suspension requested was a matter of urgency;

Considering that, in ordering the suspension of the disputed decision, the interlocutory judge of the Nice Administrative Tribunal, without dealing with the serious defense argument of the Prefect of Alpes-Maritimes on the effects which suspension could have on the state of waste disposal in the Alpes-Maritime department, stated only that ‘having regard to the injury to a protected woodland and to the risk of pollution of the phreatic layers’ the suspension was justified as a matter of urgency; that the challenged order is thus insufficiently reasoned and so must be annulled;

Considering that it is appropriate, under article L 821-2 of the Administrative Justice Code, to settle the matter under the interlocutory procedure initiated by the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Digue;

Considering that, by a decision of 17 October 2000, the Prefect of Alpes-Maritimes authorized, for a term of thirty years. The South-East Waste Disposal Company to run, on a site of a dozen hectares in the commune of Villeneuve-Loubet, a rubbish tip for household waste and the like and for final waste, planned to take about 270,000 tones of waste a year;

Considering on the one hand that the investigation does not reveal precise details on the reality of serious risks for the environment which the operation of the tip might at once entail, it having been in use several weeks by the date of the request for suspension;

Considering on the other hand that, for lack of any other means of handling such a quantity of waste in the department in the short term, the appropriate authorities, if suspension were ordered, would have to have the waste carried to another department for elimination there;

Considering that on these facts it does not appear from the evidence that a state of emergency which, as has been said, must be assessed objectively and overall, justifies the suspension of the decision of 17 October 2000; that it follows that the request for a suspension must be denied;

On the submissions on the application of article L 761-1 of the Administrative Jutsice Code:
Considering that these provisions prevent the State, which in this case is not the losing party, from being ordered to pay the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Digue the sum they claim as expenditure incurred not covered by costs; that it is not appropriate to order the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Digue to pay the State the sum claimed as expenditure incurred not covered by costs;

DECIDES:
Article 1: The Order of 18 January 2001 of the interlocutory judge of the Nice Administrative Tribunal is annulled.

Article 2: The claims put forward by the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Digue are rejected;

Article 3: The submissions of the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Digue, and of the Minister for Regional Development and the Environment are rejected;

Article 4: This decision is to be notified to the South-East Waste Disposal Company, the Minister for Regional Development and the Environment, the Lei Granouie association, Mr. Tremellat, the Environment Association of the Heights of Vaugrenier, and Madame Martice Digue.

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