2Planning litigation remains a poorly understood area. It is restricted to a handful of specialists in planning law with the greatest interest in technical journals (Amselek, 1997), and is seldom the subject of interdisciplinary debate. Studying these legal challenges is, however, one way to approach territorial and environmental conflicts (Laslaz, 2020) in mountain areas. While the sharp increase in litigation over planning decisions and documents since the early 2000s has been highlighted on numerous occasions (Delesalle, 2016; Noguellou, 2020), studies of the practical impact of these legal challenges on planning in mountain communes are less common (Sulpice, 2020).

4The purpose of my research was to understand the impact of this litigation on the development policies set out in commune planning documents. I hypothesised that this impact would vary across the communes, since the law and court judgments do not represent a rigid framework, but rather a potential for action. The consequences of the illegalities of these documents therefore largely depend on the strategies employed by the communes to control their impact.

5To explore my hypothesis, I conducted interviews and explored planning archives, the minutes of commune meetings at which decisions were made, the various opinions from national government bodies on these documents, and written court judgments. I also conducted semi-structured interviews with the different actors involved in drawing up these plans (commune officials, lawyers, town planners and staff from the land use authorities at the département level). Interviews are remarkably invisible in legal science, despite the fact that they are undoubtedly used on a regular basis by legal scholars. I therefore drew on the literature of the sociology of public action to develop the interview guide and to conduct and analyse the interviews. The value of interviews for legal scholars lies in the insight they provide into how legislation is interpreted and practised by the actors involved. As such, interviews have both the narrative value of reconstructing the sequence of events leading to the application or non-application of a legal text, and an interpretative value for analysing the practices and representations of the law by these actors (Pinson and Sala Pala, 2007). With regard to the Maurienne SCOT, I also analysed the numerous documents included as part of this plan, and the court judgments concerning it.

6I will begin by describing the legal environment applicable to ski resorts, which is characterised by the presence of protected areas and by a sharp increase in litigation. I will then explore the reasons for, and impact of, the annulment of the selected PLU, before going on to analyse the recent annulment of the Maurienne SCOT.

Mountain Spaces: From the Conflictual Occupation of Space to Challenges in the Courts

7The conflictual nature of the occupation of space in these mountain areas arises from the way in which ski resorts encroach onto and are close to other, protected, areas: a territorial conflict that is increasingly coming before the administrative courts.

Encroachment onto, and Proximity to, Spaces Protected nder the French Environment Code

8Conflicts over the occupation of space in these mountain areas arise from the original coexistence of ski resorts with areas protected under the French Environment Code. In France, the 1960s saw both the construction of the “third generation” of ski resorts on virgin sites (Knafou, 1978), and the introduction of national parks legislation in 1961, with the subsequent creation of the Vanoise (1963) and Écrins (1973) mountain national parks. These ski resorts therefore overlap with or are located in the immediate vicinity of protected areas, including national parks (Laslaz, 2009).

9In the French Northern Alps, the overlap is particularly significant, with 75% of these ski resorts overlapping with protected areas.

10The protected areas most affected by overlap are those belonging to national parks and Natura 2000 sites, as shown in this 2019 graph produced by the CGEDD (now the IGEDD).

11The location of ski resorts in the Northern Alps thus reveals a significant potential for spatial conflict, given their coexistence with protected areas.

12To take the example of the Maurienne SCOT, which included plans for ten major “new tourism units” (unités touristiques nouvelles, UTN), six of which would have enabled the expansion of ski areas, the overlap and proximity with protected areas is very clear if we look at the map included in this SCOT, with only a few lowland areas not protected (these are shown in white on the map).

13This provides an indication of the environmental protection arguments developed to varying degrees before the administrative courts. As we will see, the PLU were mainly attacked on the grounds of failure to comply with planning law regulations, while the Maurienne SCOT was primarily overturned by arguments concerning the environmental assessment and damage to protected areas. In terms of the claimants in the cases studied, I found that the PLU were very often challenged by property owners (individual claimants, owners and co-owners associations), who represented 68 of the 80 claimants identified. These claimants tend to develop more opportunistic arguments linked to environmental protection, whereas environmental groups dig deeper into these arguments, and in some cases even submit their own studies on the impact of planning documents on wetlands, as with the legal challenge to the Maurienne SCOT.

Table 1. number of claimants challenging the seven annulled PLU

Commune	Individual claimants	Community group	Business (property management company [SCI] or company)	Owners/co-owners association	Prefecture/National government	Total number of claimants challenging the PLU
Val d’Isère 2010	2			8		10
Val d’Isère 2014			1	2		3
Val d’Isère 2018				11		11
Courchevel (administrative court) 2010	6					6
Courchevel (administrative court of appeal) 2011	3					3
Courchevel (administrative court) 2014	2					2
Méribel 2014	1			1		2
Chamonix 2007	5	1	1	1		8
Chamonix 2011	3			1		4
Morzine					1	1
Megève	12	3	2			17
Huez	5	1	2	5		13
Total number across all annulled PLU	39	5	6	29	1	80

Sulpice, 2020.

A Conflict Played out before the Administrative Courts

14Since the 2000s, there has been a steady increase in legal challenges concerning planning and the environment. These questions have been judicialised, with more conflicts in this area being brought before the courts than ever before. The Conseil d’État – the French supreme court for administrative law – is therefore handling more cases involving planning litigation: the proportion of such cases rose from 1% of its caseload in 2000, to between 6% and 10% of its caseload between 2011 and 2016.

15The communes that include very large ski resorts in the Northern Alps are all located within the geographic jurisdiction of the same administrative court in Grenoble, which has original jurisdiction to hear legal challenges to planning documents. This court handles far more cases in this area than any other administrative court in France.

16Of the twelve communes included in the study, seven had had a PLU totally or partially overturned on at least one occasion between 2000 and 2017. These annulments are listed in the table below.

Table 2. PLU annulments for the communes studied

Commune	Date PLU approved	Date PLU annulled
Val d’Isère annulled in 2010	Decision no. 01.01 of 16 January 2008: Approved	Grenoble administrative court, 25 May 2010, Commune de Val d’Isère, no. 0801106
Val d’Isère, annulled in 2014	Decision no. 04/07 of 27 April 2012: Approval of the local development plan	Grenoble administrative court, 14 October 2014, Commune de Val d’Isère, no. 1203512
Val d’Isère annulled in 2018	Decision of 19 December 2016 no. 2016.09.05: Approval of the PLU (local development plan)	Grenoble administrative court, 6 November 2018, Commune de Val d’Isère, no. 1701033
Courchevel annulled in 2011	Decision of the Saint-Bon-Tarentaise Municipal Council of 20 December 2006: Approval of the revised PLU (change from land use plan [plan d’occupation des sols, POS] to PLU)	Lyon administrative court of appeal, 25 October 2011, Commune de Saint-Bon-Tarentaise, no. 10LY00962
Courchevel, annulled in 2014	Decision of the Saint-Bon-Tarentaise Municipal Council on 17 November 2011: Approval of the revised PLU	Grenoble administrative court, 22 April 2014, Commune de Saint-Bon-Tarentaise, no. 1202555
Les Allues annulled in 2014	Decision no. 68/2011 of 31 May 2011: Approval of revision no. 3	Grenoble administrative court, 22 April 2014, Commune des Allues, no. 1104068: annulment of PLU revision no. 3
Chamonix annulled in 2007	8 July and 14 December 2005: decision of the Municipal Council to approve the PLU	Grenoble administrative court, 25 October 2007, Commune de Chamonix, no. 505912, upheld by the Lyon administrative court of appeal, 22 February 2011, Commune de Chamonix, no. 8LY00170
Chamonix, annulled in 2015	Decision of the Commune de Chamonix Municipal Council, 13 February 2014, no. 002745. Re.: Approval of the local development plan - Mouilles area	Grenoble administrative court, 9 April 2015, no. 1206276. Fédération générale de l’industrie hôtelière touristique and Commune de Chamonix
Megève annulled in 2010	Decision of 20 December 2007	Grenoble administrative court, 4 June 2010, Commune de Megève, no. 0800800
Avoriaz, annulled in 2008	Decision no. 2008.02TER.05 of 29 February 2008: Local development plan: Approval of revised plan	Grenoble administrative court, 30 June 2010, Commune de Morzine, no. 0904899
Huez annulled in 2017	Decision of 11 November 2015: Approval of the PLU	Grenoble administrative court, 19 October 2017, Commune de Huez, no. 1600090

Sulpice, 2020, p. 326.

17Mountain regions are thus characterised by overlapping occupation of space between protected areas and ski resorts, as well as substantial litigation over local development plans. Since 2010, for example, the Val d’Isère PLU has been routinely challenged, with three approved versions overturned at first instance by the Grenoble administrative court between 2010 and 2018.

Annulment of Local Development Plans, and Strategies of Resistance

18With regard to the twelve communes included in the study, I observed a range of legal strategies used to overturn the PLU, along with different strategies of resistance developed by the communes in response to court judgments.

The Legal Grounds for Overturning Local Development Plans

19With regard to the PLU, claimants challenged the way in which the decision to approve the document was made. In its examination of this decision, the court found the planning documents to have external illegalities – concerning the form and procedure of adoption – and internal illegalities – concerning the substance of the plans. The consequences for the authorities vary depending on the type of illegality: if an external illegality is identified, they must review the form and procedure adopted, whereas an internal illegality requires the commune to amend the content of the planning document.

20A range of arguments were used to challenge the external legality of the PLU in the courts, the majority concerning failure to comply with the relevant provisions of the French Planning Code. In 2010 and 2014, two Val d’Isère PLU were overturned as a result of failure to incorporate provisions of the Loi SRU of 2000 and Loi Grenelle II of 2010 respectively. For the Megève PLU in 2010, the court found that the municipal council had not been provided with a summary memorandum for the meeting at which the decision to approve the plan was taken. In 2011, the administrative court sanctioned the substantial modification of the Courchevel PLU after the public enquiry; a change that was designed to exempt certain hotels from the land use coefficient, and thus enable them to expand. When overturning the Courchevel PLU in 2014, the court also held that the objectives of the plan were not defined with sufficient clarity in the meeting at which the decision on the PLU was made. The commune would ultimately have to take its case all the way to the Conseil d’État to have the relevant case law changed. For the Les Allues PLU in 2014, two external illegalities were identified. The first of these was a procedural flaw regarding the public enquiry, a section of which did not include the necessary opinions from the relevant public authorities. Secondly, the PLU adoption procedure was found to be irregular, as it should have been submitted for environmental assessment. In the case of the Huez PLU in 2017, the Grenoble administrative court found external illegality on three grounds: a lack of consultation; the illegal addition of the opinion from the environmental authority to the public enquiry file four days before it closed; and an illegality concerning the initial assessment and the economic and demographic projections, resulting in excessive land use. These communes therefore had to review the aspects of the procedure that were sanctioned.

21The internal illegalities sanctioned by the court fell into three categories. The first of these was infringement of the Planning Code. In 2014, for example, the planning and sustainable development plan in the Val d’Isère PLU was found to be too brief to comply with the legal requirements. The second was legal errors in the PLU regulations. In 2014, for example, the Méribel PLU was found to include provisions that illegally governed the interior layout of buildings, which is not covered by the Code. The third and final category consisted of clear errors in risk assessment, in the zoning of PLU, and in the drafting of PLU development and programming guidelines. The courts therefore ruled that the documents included in the PLU must be amended.

22The type of illegality identified by the court thus indicates the course of action to be taken by the communes. But my examination of how these court judgments were implemented by the communes reveals resistance to the annulments by several local authorities, driving them to anticipate or counter the impact of the PLU being overturned.

Safeguarding Commune Plans by Employing Strategies of Resistance to Annulment

23I observed two types of strategy for resisting the annulment of a PLU: formal strategies, with communes defending their planning documents in court; and informal strategies, in which communes used a variety of tactics to prevent the annulment from having an impact on their political will.

25I will provide two illustrative examples of informal resistance. The first involves the commune of Méribel-les-Allues, which since the 2000s had sought to anticipate legal challenges by drawing up a new PLU every two years. The 2014 annulment thus had little impact, as a previous PLU came back into force following this judgment, and another PLU was ready to be approved. There was no risk of the commune having to fall back on an old POS, or worse, on the national planning regulations (Règlement National d’Urbanisme, RNU), which would have applied in the absence of an approved local plan.

27These examples show how public policy can be revived after a court judgment, and how the communes develop planning strategies that allow for these legal challenges and do not bind them into a strict framework. Following on from these insights, I will now analyse the legal challenge that led to the Maurienne SCOT being overturned.

The Annulment of the Maurienne SCOT: A “Drama” in Two Acts

28The annulment of the Maurienne SCOT marked the first time in France that such a document had been overturned, following the adoption of the Loi Montagne II in 2016. Whereas ordinary planning law is more influenced by environmental considerations, this legislation supports the deeper integration of UTN into SCOT and PLU (Moulin, 2021). UTN are mountain tourism development projects that enable the expansion of ski areas or the creation of more beds in tourist accommodation. The Maurienne SCOT included plans for ten UTN, as described in the table below:

Table 3. The planned major UTN included in the Maurienne SCOT

Location	SCOT UTN form	Name of the major UTN	Project type
Saint François Longchamp	UTN S 1	Creation of ski lifts and related slopes in the alpine ski area of St François Longchamp (Grande Combe, Bosse à Hélène and Roc Noir)	Alpine ski area
Albiez-Karellis	UTN S 2	Creation of an Albiez-Karellis link and expansion of the alpine ski slope	Alpine ski area
Valloire	UTN S 3 UTN S 4	Creation of two ski lifts and related slopes expanding the Galibier-Thabor ski slope Creation of a Club Med in Valloire	Alpine ski area Accommodation
Valmeinier-Orelle-Valfréjus	UTN S 5	Creation of a link between the Valmeinier and Valfréjus ski slopes including access from Orelle: the “Croix du Sud”	Alpine ski area
Valfréjus-La Norma	UTN S 6	Creation of a cable car from the Modane multimodal transport hub to Valfréjus and La Norma	Cable car
Aussois	UTN S 7	Creation of ski lifts and related slopes expanding the Aussois alpine ski area (Grand Chatelard and Col des Hauts areas)	Alpine ski area
Val-Cenis	UTN S 8	Creation of ski lifts and related slopes expanding the Val-Cenis ski area: the “Liaison Haute”	Alpine ski area
Aiton to Bonneval-sur-Arc	UTN S 9	Creation of a cycle route from the valley floor in Aiton to Bonneval-sur-Arc	Cycle route
Saint-Jean-de-Maurienne	UTN S 10	Creation of an international cycling centre using the thermal baths	Thermal baths + accommodation + cycling activities

Steering and objectives document, p. 39.

29The Maurienne SCOT was approved by the Syndicat du Pays de Maurienne (SPM) local authority on 25 February 2020, and annulled in its entirety by the Grenoble administrative court on 30 May 2023. In 2021, the same court had ordered an emergency interim suspension. Using emergency interim suspension proceedings, a court can rule rapidly on a case and suspend a decision pending a final judgment under urgent circumstances where there is serious doubt regarding the legality of an administrative act. The legality of five of the major UTN (UTN structurantes, UTNS) included in the SCOT was held to be seriously in doubt, and it was these UTN that were suspended by the administrative court in 2021. In 2023, however, the document was definitively overturned on the grounds of problems with seven of the UTNS. Between the emergency interim proceedings and the final judgment, the legality of the SCOT was thus assessed more severely. I will now look at these illegalities and their consequences in more detail. Tracing the series of events that resulted in the overturning of the SCOT reveals the strategy used by elected representatives to resist the application of environmental law, in terms of both the environmental assessment and the overlapping of ski resorts with protected areas.

Act I: The Emergency Interim Suspension of the Maurienne SCOT

30On 9 April 2021, the Grenoble administrative court issued an emergency interim suspension for five of the UTNS (UTNS 2, 3, 5, 7 and 8) included in the SCOT. I will analyse the substance of this interim judgment, as well as its consequences and the strategy pursued by the SPM.

Emergency Interim Suspension: Suspension of the SCOT Due to Serious Doubts about the Legality of Five UTNS

31At the end of the emergency interim suspension proceedings, the administrative court ruled there to be serious doubt about the legality of the five UTNS. This judgment was based on three grounds: first, the inadequacy of the overview report, particularly with regard to the opinion of the regional environmental authority (Mission régionale de l’autorité environnementale, MRAE); second, the fact that the SCOT did not offer any alternative to environmental protection for the five UTNS in question; and third, the fact that the authors of the SCOT had incorrectly assessed the impact of these UTNS in terms of the principle of balance enshrined in the French Planning Code, particularly with regard to its environmental component. The five UTNS were thus suspended on 9 April 2021, but the SPM took proactive steps to try and secure the legality of its SCOT until the final judgment was handed down by the Grenoble administrative court in 2023.

The Consequences of the Emergency Interim Suspension: An Attempt to Revise the SCOT

33On 5 July 2022, the chair of the SPM issued SCOT amendment no. 1 for UTNS 3, 5 and 8. The SPM then applied to the environmental authority (MRAE), which on 29 August 2022 confirmed that this amendment should be submitted for environmental assessment on a case-by-case basis. The MRAE was forced to restate this position on 6 December 2022, after the SPM appealed to contest its August decision. Finally, on 28 March 2023, the SPM decided the SCOT should be revised. But not long after this, on 30 May 2023, the Grenoble administrative court issued a final judgment in which it annulled the SCOT in its entirety.

Act II: The Annulment of the SCOT in Its Entirety and Its Impact on the Maurienne Region

34In its judgment of 30 May 2023, the administrative court issued a scathing analysis of the failings of the Maurienne SCOT to comply with environmental and planning law. Four main reasons were given for the annulment: the inadequacy of the environmental assessment; the lack of consistency between the SCOT documents; errors of assessment concerning seven UTNS; and, finally, failure to consider the principle of balance.

35Firstly, the inadequacy of the environmental assessment was due to the absence of a key element: the SCOT did not propose a reasonable alternative scenario, in spite of the requirement to show that other options were considered. While this SCOT originally proposed four initial scenarios, these were presented as complementary rather than as alternatives. The local authority should have presented genuine alternatives, not only for the SCOT as a whole, but also for each of the ten UTNS included in the plan. It was on these grounds that the Grenoble administrative court held the environmental assessment to be inadequate.

36Secondly, in order for a SCOT to be legal, there must be consistency between the various documents included in it. The names of these documents have recently changed following legislative reform, but at the time the Maurienne SCOT was drawn up, it was required to include an overview report (rapport de présentation), a planning and sustainable development plan (plan d’aménagement et de développement durable, PADD), and a steering and objectives document (document d’orientation et d’objectifs, DOO). The administrative court examines the degree to which the political project presented in the PADD is implemented in the provisions of the DOO, and in the case of the Maurienne SCOT, held the documents to lack consistency. While “the overall philosophy of the [PADD] was to find alternative options for summer activities [...] opting to spread tourism out over the year rather than concentrating it on board sports and the winter season”, the DOO set out plans to develop tourism facilities primarily geared towards winter tourism and skiing, notably by way of the ten UTNS. The administrative court thus found the SCOT to be illegal since the DOO “failed to incorporate the clear drivers” of the PADD.

37The administrative court proceeded to undertake a detailed analysis of each UTNS and its legality in terms of its impact on areas protected under environmental law, and ultimately found seven of the UTNS to be illegal. The court’s judgment was informed by both the number and scale of the infringements. The table below summarises the factors that informed the court’s decision for each UTNS.

Table 4. The factors informing the court’s decision for each UTNS in the Maurienne SCOT

38The administrative court considered both overlapping land use and the immediate proximity of the UTNS to the protected areas. The extent of damage to wetlands was based on studies presented to the court by France Nature Environnement. The court’s decision was also influenced by concerns about water pollution and natural risks.

39In light of all these factors, the administrative court ultimately concluded that the SCOT had failed to consider the principle of balance enshrined in French planning law. This principle is one of the main objectives of local planning (Soler-Couteaux and Carpentier, 2022), and was contravened by the Maurienne SCOT because it failed to limit urban sprawl in mountain areas of significant environmental and heritage interest. This judgment therefore constitutes a major rejection of a SCOT containing ten UTNS, and will undoubtedly have repercussions on other development projects. My research on the PLU demonstrates the need to take a close look at the interplay between the actors involved in the overturning of this SCOT in order to understand its full impact and the strategies pursued as a result. At the time of writing, the SPM has appealed against the judgment, and the Lyon administrative court of appeal is expected to rule on the case in 2024.

Conclusion

40Planning litigation in mountain areas remains an underexplored area that requires an analysis of both developments in the law and in litigation, and the legal and political strategies pursued by the local authorities responsible for these documents. It is important to recognise that a court judgment overturning a PLU or SCOT does not always signal the end of the strategy set out by a local authority in such a document, since numerous strategies of resistance are implemented to anticipate or avoid the costly consequences of these annulments.

41My research, which is based on questions specific to legal science and uses social science methods, provides insight into the consequences of a planning document being overturned by the courts. It also reflects the developments that are currently taking place – albeit too slowly – in legal science. The first of these is a shift towards the study of empirical data. In addition to clarifying the legal framework, legal experts have an underexplored part to play in studying the law as it is applied by the actors involved. As my research shows, studying the development, content and litigation of planning documents offers fertile ground for such questions. The second development concerns the complexity of introducing sustainable development and ecological transition into the law, which is often highlighted from the point of view of national legislation (Cans, 2003), but rarely in relation to local legislation, such as PLU or SCOT. Third and finally, this approach necessarily requires legal scholars to take a step towards the other social sciences in order to work on a common subject, in this case mountain areas. The legal approach therefore has a role to play in shedding light on conflicts and territorial transitions in the mountains, but this work also helps in turn to identify the current challenges in the development of legal science.

42The possibility of major sporting events being hosted in the Alps over the coming decade is a further driver for interest in this area. The 2024 Paris Olympics have resulted in a number of changes to French planning law, and numerous conflicts over planning documents and approvals. There is thus a need to pursue research into and legal monitoring of planning procedures in the Alps, in order to understand them better, leverage these findings for the good of society, and respond to societal and sustainable development challenges, in the spirit of Article L. 111-1 of the French Research Code.