Expertise

Urban planning - Cases

An action for annulment was brought by us against an order for the closure of a construction site given by the mayor of a municipality in relation to works undertaken in the execution of an authorisation to convert and to partially reconstruct a single-family home located in a rural area. In the present case, this work site closure order was intended to circumvent the fact that it was impossible to withdraw the authorisation issued by the predecessor of the individual responsible for the contested decision, which had become definitive, and to thereby deprive the owners of the building in question of the benefit of that authorisation. The Administrative Tribunal upheld our arguments and requests, and annulled the contested work site closure order, emphasising that the supervisory obligations of the municipal authority with regard to the execution of authorised works cannot give rise to the withdrawal of a definitive authorisation. It also stated that the closure of the contested work site was illegal, as there was no discrepancy between the works that had been authorised and the works undertaken by the recipients of the authorisation.

An action for annulment was brought by us against a Grand-Ducal regulation establishing a "protected area of national interest", comprising "natural reserve" and "protected landscape" zones. This Grand-Ducal regulation would have affected 6.76 hectares of land belonging to our client. In line with one of the arguments that we put forward, the Administrative Tribunal agreed that the contested Grand-Ducal regulation had been established on the basis of an NPNC ('National plan for nature conservation') adopted by the decision of the Council of Government, that the 'protected area of national interest' created by the Grand-Ducal regulation under review (with a total land surface area of 2,378.63 hectares) significantly exceeded the protected area provided for under the Council of Government’s decision in question, and that it was therefore not in line with the protection policy set down in the text on which it was based. In view of this, the Administrative Tribunal annulled the contested Grand-Ducal regulation for violation of the law. The appeal lodged by the State of the Grand Duchy of Luxembourg against said ruling was declared admissible but unfounded. In support of its ruling, the Administrative Court emphasised that the signatures on a Grand-Ducal regulation made pursuant to the law are required to record the formalisation of the delegation of power under law to the executive. It also stated that, in this case, the 'protected area of national interest' as established in the contested Grand-Ducal regulation, was not in any way verified on the basis of the legal texts serving as its foundation.

An action for annulment was brought by us on behalf of an S.C.A- SICAV FIS against administrative decisions for the adoption of a general development project. It should be noted that, during the pre-litigation phase, said S.C.A- SICAV FIS, which owns 37 hectares of land in the municipality in question, had put forward comments with a view to incorporating its land parcels into the municipality and to incorporating some of these land parcels into the municipality's zone of economic activity. It should also be noted that the refusal by the authorities to accede to this last request was on the grounds that the classification of the land parcels in question was within the 'protected area of national interest', the creation of which was the subject of the dispute described in the preceding paragraph. Upholding one of the arguments developed by us in support of the abovementioned action for annulment, the Administrative Tribunal first annulled the contested ministerial decision due to a formal defect, as the decision did not provide the grounds on which it was made, and the administration had not provided any motivating factors during the proceedings. With regard to the refusal to classify the land parcels as being with the municipality's zone of economic activity, the Administrative Tribunal found that it was required, by exceptional remedy, to address the matter of the legality of the Grand-Ducal regulation on the creation of the 'protected area of national interest' in question, and recalled the wording of the decision, whereby it ruled that the Grand-Ducal regulation did not comply with its enabling legal basis and ruled that it did not, as it stood, have sufficient or new grounds to cause it to deviate from the solution set down in its above ruling. As the Grand-Ducal regulation provided grounds for the municipal authority to exclude the parcels belonging to the S.C.A- SICAV FIS from the scope of the municipal conurbation, and as the text did not comply with its enabling legal basis and was therefore unlawful, the Tribunal annulled the municipal decisions on the adoption of the general development plan project insofar as they rejected the incorporation of the land parcels belonging to our client into the conurbation.

An appeal was lodged by us against the abovementioned ruling, as not all of the arguments and claims made in support of our action had been successful. We criticised the decision made by the first judges because they had not simply annulled all of the contested decisions, on the basis of a conflict of interests for three members of the municipal council, the misuse of power by the municipal authority, and manifest errors of assessment of the decisions of the municipal authority. An appeal was also lodged against the ruling in question by the municipal authority. Ruling on two appeals in one verdict, the Administrative Court confirmed the annulment of the ministerial decision due to a lack of valid grounds, ruled that the municipal appeal was to be dismissed in its entirety, and confirmed the ruling against which the appeal was lodged in so far as it annulled the municipal deliberations where they related to parcels for which incorporation into the zone of economic activity of the municipality had been requested. The Administrative Court also upheld one of the conflicts of interests demonstrated by us with regard to the municipal deliberations, and ruled that the two municipal decisions were to be annulled in so far as the interests in question were affected. While it is true that the Court did not otherwise uphold the criticisms set down in our writ of appeal, the fact remains that the factual developments that were put forward led the Court to note that the parcels belonging to our client were very well located, particularly with regard to key road and rail routes, whether existing or to be constructed. It should be observed that the factual assessment delivered in these terms by the highest administrative court undeniably has a certain impact.

Multiple claims were submitted by us pursuant to Article 9 of the Law of 30 July 2013 relating to land use planning, with regard to adoption procedures for draft sectoral master plans for 'Transport', 'Landscapes', 'Zones of economic activity' and 'Housing' launched by decision of the Council of Government on 16 June 2014. Taking particular account of the large number of criticisms made both by the municipalities and by the public in relation to the draft master plans, the plans were withdrawn from the procedural phase according to a decision by the Council of Government in its meeting of 28 November 2014.