The Council of State accepts that the judge of cassation assesses the sufficient nature, or not, of this period to regularize the authorization request. With a possible censorship of a time limit which would be “manifestly insufficient”… But this control by the judge of cassation will only take place at the stage of contesting the preliminary decision.
In matters of environmental authorization, as in town planning, the paths to regularization now pass either through partial cancellation, or – above all – through those of suspension of ruling with a view to regularization (2° of I of art. . L. 181-18 of the environmental code).
Thus, when the administrative judge implements the powers he holds from 2° of I of article L. 181-18 of the environmental code, he is required, before suspending his ruling, to invite the parties to present their observations, which may relate both to the regularizable nature of the identified defects and to the modalities of regularization, in particular the time limit for achieving this.
Setting the regularization deadline has given rise to some clarifications in town planning law (see for example CE, February 16, 2022, Association “Eoliennes, s’en nait trop”, req., n° 420554, 420575, rec. p. 27).
It is then up to the judge to set the deadline within which the amending authorization must be notified to him, taking into account the measures to be taken to regularize the defect and any constraints of which the parties have informed him.
The Council of State has just regulated the control carried out by the judge of cassation on the sufficient nature, or not, of this period to regularize the authorization request.
This deadline, poses the High Assembly:
- can usefully be criticized before the judge of cassation.
- the control of which will consist of ensuring that the deadline which has been set is not manifestly insufficient.
In this case, a period of 4 months for a wind farm having to justify a protected species exemption was clearly not sufficient:- “12. In the present case, it follows from the judgment under appeal that the court stayed ruling on the conclusions of the requests of the LPO and the Charente Nature association, on the one hand, and of the A bout association of blast Vouthon Val de Tardoire and others, on the other hand, until the expiry of a period of four months from notification of the judgment to allow the company Ferme éolien de Bandiat-Tardoire to notify it THE where applicable, a “protected species” exemption. It does not appear from the documents in the file submitted to the court that the regularization period which it thus set would be manifestly insufficient.
- but this control by the judge of cassation will not take place only at the stage of contesting the preliminary decision.
NB : on the ability to contest the first judgment or ruling as it applied article L. 181-18 of the environmental code, CE, December 28, 2022, Association “Without offshore on the horizon” and others, nos. 447229 453855, rec. T.pp. 876-885.
Source :
Council of State, November 18, 2024, Bandiat-Tardoire Wind Farm Company c/ League for the Protection of Birds and Charente Nature Association, No. 474372, at the tables of the Lebon collection
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