Administrative Court of Appeal of Bordeaux, 6th chamber (formation of 3), 14/02/2012, 11BX00166, Unpublished in the Lebon collection

Considering the request, registered with the registry of the court on January 18, 2011, presented for Mrs. Christine and Mr. André Pierre, residing …, by Mr. Mitard, lawyer;

Mrs. and Mr. ask the court:

1 °) to annul the judgment n ° 0900225 of November 18, 2010 by which the administrative court of Poitiers rejected their request for the annulment of the decree of November 27, 2008 by which the mayor of La Rochelle granted to the Gestotel company the permit to construct a building for office and residential use on land located 6 rue des remparts Saint-Claude;

2) to cancel, for excess of power, the said decree;

3) to charge the municipality of La Rochelle a sum of 2,500 euros under article L. 761-1 of the code of administrative justice;

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Having regard to the other documents in the file;

Having regard to the construction and housing code;

Having regard to the town planning code;

Considering the code of administrative justice;

The parties having been regularly informed of the day of the hearing;

After hearing during the public hearing of January 17, 2012:

– the report by Mrs Munoz-Pauziès, first advisor;
– the conclusions of Mr. Gosselin, public protractor;
– the observations Me Le Breton lawyer of the municipality of La Rochelle;

Considering that by decree of November 27, 2008, the mayor of La Rochelle granted the Gestotel company the permit to construct a building for office and residential use on land located 6 rue des remparts Saint-Claude in La Rochelle; that Mrs. and Mr. fall appeal of the judgment of November 18, 2010 by which the administrative court of Poitiers rejected their request tending to the annulment of the said decree;

On the conclusions at the end of cancellation:

Regarding external legality:

Considering that under Article R. 423-54 of the Town Planning Code, relating to the examination of building permit applications: When the project is located in a protected area whose perimeter has been delimited, the he competent authority obtains the agreement of the architect of the Buildings of France; that the fact that the architect of buildings in France was not consulted before the building permit was granted can no longer usefully be invoked against this permit when the architect has given his agreement, in view of the entire file, to the project authorized by a modification permit;

Considering that the land for the construction project of the Gestotel company is located in the protected sector of La Rochelle; that if the opinion of the architect of the buildings of France of September 23, 2008 was given in view of a construction project located at 49 rue Saint-Claude, it appears from the documents in the file that the Gestotel company filed on February 11 2009 a request for a modifying building permit, and that the architect of the buildings of France gave his agreement, on February 16, 2009, to the project authorized by the modifying permit granted on June 19, 2009, subject to compliance with numerous requirements relating to the exterior appearance of the building, and in particular the plaster covering the walls, the window frames, the cornices, bands, windows, entrance doors and exterior joinery, the water jets and supporting parts, the elements wooden blinds, fence gates and gates; that as, therefore, the applicants are not founded to maintain that the opinion of February 16, 2009 would not have been made on the whole file and in particular on aspect external of construction;

Considering that under article R. 431-30 of the Town Planning Code: When the planned work relates to an establishment open to the public, the request is accompanied by the following files, provided in triplicate: / a) A file to verify the project’s compliance with the rules of accessibility for disabled people, including the documents mentioned in articles R. 111-19-18 and R. 111-19-19 of the construction and housing code; / b) A file making it possible to verify the conformity of the project with the safety rules, including the documents mentioned in article R. 123-22 of the same code; that under Article R. 123-2 of the Construction and Housing Code: (…) constitute establishments open to the public all buildings, premises and enclosures in which people are admitted, either freely , either for a fee or any participation, or in which are held meetings open to all comers or by invitation, paying or not. / Are considered part of the public all persons admitted to the establishment for any reason whatsoever. either in addition to the staff; that the project of construction of the company Gestotel includes a local dwelling and offices intended to become the seat of the company and which will not be opened to the customers; whereas it is therefore not an establishment open to the public within the meaning of the aforementioned provisions; that as a following, the plea of ​​non-compliance with the provisions of Article R. 431-30 of the town planning code must be rejected;

Regarding internal legality:

Considering that, as it has just been said, the construction project of the Gestotel company does not relate to an establishment open to the public; that as a following, the means drawn from the provisions of the articles of the code of town planning and the code of construction and the habitat relating to these establishments must be discarded;

Considering that under the terms of article R. 431-2 of the town planning code in fine: The request specifies that the applicant and, where applicable, the architect, are aware of the existence of general construction rules provided for in Chapter I of Title I of Book I of the Construction and Housing Code and in particular, when construction is subject to it, accessibility rules set in application of Article L. 111-7 of this code and the obligation to comply with these rules. ; that these provisions only oblige the petitioner to specify in the building permit application that he is aware of the accessibility rules set by the building and housing code and of the obligation to respect said rules; that as a following, the plea of ​​what no element of the file permit building litigious would verify compliance project to said rules must be rejected;

Considering that under article 6 of the land use plan of the municipality of La Rochelle: 1. Parking of vehicles: (…) The area to be taken into account, for a parking space is: / -for buildings for individual residential use: 15 m2, not including traffic and clearances / – for other constructions: 20 m2, including traffic and clearance in the car park (…). 2. It is required: / For buildings for individual residential use: / -2 parking spaces on the property for each accommodation with more than 30 m2 of net floor space or more than two rooms (…) / For office buildings (…): an area allocated to parking at least equal to 60% of the net floor area of ​​the building; that results from these provisions that the project authorized had to envisage two places of 15 m2 for the apartment and a surface assigned to the parking of 48 m2 for premises for use of offices; that the building permit application provides for the creation of four spaces and 99 m2 for parking; that thus, and whatever the graphic representation that the petitioning company may have thought it necessary to present by materializing four parking spaces, the area available to it to create such spaces is sufficient to ensure compliance with the provisions of Article 6 the land use plan; that if the applicants maintain that part of this surface is not assigned to the parking, they bring no element in the support of this affirmation; that as a following, the plea of ​​violation of the provisions of Article 6 of the plan of occupation of the grounds must be rejected;

Considering that it follows from the foregoing that Ms and M. are not justified in claiming that it was wrong for the Administrative Court of Poitiers to reject their application by the judgment under appeal;

On the conclusions tending to the application of article L. 761-1 of the code of administrative justice:

Considering that the provisions of article L. 761-1 of the administrative justice code prevent the municipality of La Rochelle, which is not the losing party in the present proceedings, from being charged to the sum that Mrs. and Mr. claim for costs incurred and not included in costs; that it is necessary, on the other hand, to apply these provisions and to put in charge of Mrs. and Mr. a sum of 1,500 euros under expenses incurred by the municipality of La Rochelle and not included in the costs;

DECIDES:
Article 1: The request of Mrs. and Mr. is rejected.
Article 2: Mrs. and Mr. will pay the municipality of La Rochelle a sum of 1,500 euros under Article L. 761-1 of the Code of Administrative Justice.
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