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M. Schiocchet, n° 211510 , Conseil d'Etat, 11 février 2004, AJDA 2004 Informations rapides p. 1102

Facts: the applicant was M. Schiocchet. He obtained a construction permit from the mayor but later realized that it contained a condition for getting the permit, namely that the proprietor of land M. Schiocchet had to give up one part of his land (not more than 10% though) for free to the city in order to enlarge the public road. This provision was inserted in the construction permit pursuant to articles L. 332-6 and L. 332-6-1 of the Code of Urbanism which provided that cities could grant construction permit under the condition of the free transfer from the proprietor of not more than 10% of his land to beneficiate the public interest of the city. The applicant claimed that these articles violated article 1 of the European Convention by depriving a proprietor of his property.

Holding: the Conseil d'Etat rejected the applicant's claim

Reasoning: articles L. 332-6 and L. 332-6-1 of the Code of Urbanism do not aim, contrary to the procedure of expropriation, at depriving a person from her property but at regulating the right to build housings. Moreover, the contribution by the proprietor of 10% of her land to obtain her permit to build her house can only be required if the proprietor asks for a permit to build new buildings and is implemented only when the construction begins. This contribution is also very controlled and strictly regulated by the Code and must be justified by a precise construction project by the public authority (the city). Finally the proprietor is not precluded from asking for an indemnification of the cession of land when the loss is disproportionate for the proprietor compared to the legitimate aim followed by the public authority. Therefore, the challenged articles of the Code are in conformity with article 1 of the European Convention.

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