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Résumés

Le contentieux des documents d’urbanisme en montagne constitue une expression juridique des conflits territoriaux donnant lieu à des affrontements devant les juges administratifs. Cet article vise à montrer comment les décisions de justice des juridictions administratives ont pesé sur la rédaction des plans locaux d'urbanisme de douze communes supports des très grandes stations de ski dans les Alpes du Nord en France entre 2000 et 2017. Il se penche aussi sur l’annulation récente en mai 2023 du schéma de cohérence territorial de Maurienne. Pour ces stations, l’intensification de la production immobilière conditionne leur place dans la compétition entre destinations de loisirs. Dans ce contexte, les recours juridiques questionnent la prise en charge des contraintes environnementales par les acteurs de l’aménagement de la montagne. Ils font peser un risque juridique sur les documents d’urbanisme face auquel les stations de ski ne sont pas passives et élaborent des stratégies de résistance.

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  • 1 The commune is the smallest unit of local government in France. While it is roughly equivalent in s (...)
  • 2 These consist of the communes with at least one ski lift in operation listed as very large ski reso (...)
  • 3 This was the period of time used as the basis for my dissertation research (Sulpice, 2020).

1This article explores the legal grounds for, and consequences of, annulments by the French administrative courts of planning documents – plans locaux d’urbanisme (local development plans, PLU) and schémas de cohérence territoriale (territorial coherence plans, SCOT) – covering ski resorts. It focuses on the PLU for the communes1 including the twelve largest ski resorts in the French Northern Alps2 for the period from 2000 to 2017,3 and on the SCOT for the Maurienne region, which was overturned by the Grenoble administrative court in 2023.

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).

  • 4 Articles L.600-1 and R.600-1 et seq. of the French Planning Code.
  • 5 Article L.153-7 of the French Planning Code.

3In France, these cases are heard by the administrative courts and are subject to specific regulations.4 If a PLU or SCOT is overturned, the municipal authority may no longer implement it, and is required to draft a new document.5 Between the overturning and drafting of a new plan there are several possible scenarios, depending on the type of illegality identified, and the strategy employed by the local authorities. The policies of ski resort communes in this area resemble those of urban entrepreneurs (Harvey, 1989), with a focus on intensifying real estate production and increasing ski lift capacity (Fablet, 2015). It is therefore useful to study the strategies they are employing to deal with the risk of legal challenges to planning documents that include real estate developments. Far from preventing construction in mountain areas, French planning law in fact permits it through a range of different exemptions, due to reforms that have resulted in the “erosion” of the principles of protection set out in the Loi Montagne (Juen, 2013). To understand the law and how it is applied, in this article I take an anti-formalist approach to strategic uses of the law and to the law in action (Garcia-Villegas, 2015). This approach enables me to take a critical look at planning law, which has been called an “urban expansion law” dominated by economic overdetermination (Caillosse, 2012). It is the expression of social and economic relations in ski resorts, which are characterised by a high potential for territorial conflict, that threatens planning documents and, in turn, the policies to intensify the production of tourism real estate set out in these plans. Based on the number of beds in tourism accommodation and ski lift capacity, the Northern Alps are home to France’s largest ski resorts, from Les Deux-Alpes in Isère to Chamonix in Haute-Savoie. All of them are located within the geographic jurisdiction of the Grenoble administrative court, and the Lyon administrative court of appeal.

Figure 1. Tourist capacity of mountain communes in the Alps in 2017

Figure 1. Tourist capacity of mountain communes in the Alps in 2017

Atlas environnemental des stations de ski et des communes supports de stations, General Council for the Environment and Sustainable Development (Conseil général de l’environnement et du développement durable, CGEDD), April 2019, p. 15.

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).

Figure 2. Interactions between ski resorts and protected areas (excluding Natura 2000 sites) in the Alps in 2017

Figure 2. Interactions between ski resorts and protected areas (excluding Natura 2000 sites) in the Alps in 2017

Atlas environnemental des stations de ski et des communes supports de stations, CGEDD, April 2019, p. 25.

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

Figure 3. Proportion of ski resorts overlapping with protected areas in the Alps in 2017. Ski resorts for which land use could not be calculated are not included

Figure 3. Proportion of ski resorts overlapping with protected areas in the Alps in 2017. Ski resorts for which land use could not be calculated are not included

Atlas environnemental des stations de ski et des communes supports de stations, CGEDD, April 2019, p. 24.

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).

Figure 4. Protected areas overlapping ski resorts in the Alps in 2017, by type

Figure 4. Protected areas overlapping ski resorts in the Alps in 2017, by type

Atlas environnemental des stations de ski et des communes supports de stations, CGEDD, April 2019, p. 24.

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).

Figure 5. Protected areas and management of species and protected species in the Maurienne area

Figure 5. Protected areas and management of species and protected species in the Maurienne area

Initial environmental assessment – Maurienne SCOT, approved on 25 February 2020, p. 277.

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.

Figure 6. Percentage of Conseil d’État cases involving planning

Figure 6. Percentage of Conseil d’État cases involving planning

Sulpice, 2020, p. 11.

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.

Figure 7. Planning and environmental litigation cases handled by the Grenoble administrative court and nationally

Figure 7. Planning and environmental litigation cases handled by the Grenoble administrative court and nationally

Sulpice, 2020, p. 12.

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.

  • 6 Conseil d’État 5 May 2017, Commune de Saint-Bon-Tarentaise, no. 388902.
  • 7 Conseil d’État, 10 February 2010, Commune de Saint Lunaire, no. 327149.

24One of the most striking examples of formal resistance comes from Courchevel. In 2014, the Grenoble administrative court overturned its PLU, and this judgment was upheld by the Lyon administrative court of appeal. The commune went as far as to defend its PLU in cassation before the Conseil d’État, which in 2017 ruled in its favour, overturning its previous case law.6 Since its 2010 judgment on the Saint-Lunaire case,7 the Conseil d’État had held that the objectives and means of consultation must be defined in detail in the meeting at which the decision on the PLU was made. While the Planning Code was not as exacting in its requirements, the Conseil d’État had interpreted it very strictly, thus jeopardising many PLU, which were often adopted on the basis of vague objectives. It was on these grounds that Courchevel had had its PLU overturned by the court of first instance. In 2017, when the same PLU was examined in cassation, the Conseil d’État overturned its case law, and stopped annulling PLU on the grounds that the objectives of the PLU were not made sufficiently clear in the meeting at which the decision on it was made. This formal resistance has thus had a dramatic effect, since it has changed the case law for all French communes, which are no longer subject to this requirement. With the help of its legal advisors and its fierce determination to defend its planning document, Courchevel thus won a legal victory with a national impact.

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.

  • 8 Lyon administrative court of appeal, 22 February 2011, Commune de Chamonix, no. 8LY00170.
  • 9 Lyon administrative court of appeal, 31 July 2012, Commune de Chamonix, no. 12LY00091.
  • 10 Lyon administrative court of appeal, 3 December 2013, Commune de Chamonix, no. 12LY00091.
  • 11 Ibid.

26The second involves Chamonix, which simply failed to immediately apply the 2011 judgment by the administrative court of appeal8 that partially overturned the plans in the PLU for an area that had been classified as suitable for tourism development even though it had natural features that needed to be preserved. This was in spite of Article L.11 of the French Administrative Justice Code, which states that “Judgments are legally binding”: once the parties have been notified of the court judgment, they must take the necessary steps to enforce it. Yet following the annulment, the commune did not directly amend its PLU to comply with the court judgment, and in 2012, the claimants had to appeal to the administrative court of appeal, asking it to issue an injunction and require Chamonix to pay damages.9 The commune argued that it was undertaking a review of its PLU in light of the 2011 court judgment, and in a third judgment in 2013, the administrative court of appeal accepted this argument,10 acknowledging that “while the commune has chosen to revise its local development plan, which is not the quickest way to comply with the judgment handed down by this court, it can only be noted at the date of this decision that this process is far advanced and is expected to be completed shortly.11

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: ADrama” 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

  • 12 Ministerial response no. 39759 of 22 February 2022, p. 1165.

32Following the suspension, the elected officials of the SPM did not passively sit and wait for the final judgment, but tried to safeguard the legality of the SCOT in several ways. They sought to assess the legal risk incurred by the environmental assessment of a SCOT containing several UTNS, and to clarify how the law should be interpreted in this regard, submitted a question to the government via Emilie Bonnevard, member of the French parliament for Savoie, on 22 June 2021. On 22 February 2022,12 the government responded that the environmental assessment must be proportionate to the issues involved and the level of detail of the plans, considering the cumulative impact of several UTNS in the same area, and that it must cover both the overall strategy represented by the SCOT and the projects included in it. It also advised that the project leads should consult the environmental authority if they had any questions.

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

  • 13 Zone naturelle d'intérêt écologique, faunistique et floristique: type of classification of areas re (...)

UTNS

Land use outside the ski area in hectares

Impact on a ZNIEFF13 1 or 2 area

Impact on a wetland area (as a % of surface area, or in hectares)

Impact on a Natura 2000 site

Impact on the National Park

Impact on a biotope protection area

Presence of protected species

Other issue

1

4.1 ha

Impact on a ZNIEFF 2

 

Yes

 

 

 

 

2

3.9 ha

Impact on a ZNIEFF 2

Yes, 50% impact on the area.

Yes

 

 

Yes, presence and destruction of several habitats.

Risk of water pollution and impact on blue infrastructure. Unacceptable impact on the landscape.

3

12 ha

 

Yes, 40% impact on the area.

In the immediate vicinity

 

 

Yes
27 protected species identified.

 

4

 

 

 

 

 

 

Yes, likely destruction of species during the works.

UTN that would remove or alter 50,000 square metres of natural habitat. Effects on green corridors. Irreparable damage to the natural environment. Risk of landslides.

5

85 ha

 

Yes, 66% impact on the area.

In the immediate vicinity

 

 

Since the environmental study did not provide enough detail on this point for the administrative court, their presence cannot be ruled out.

 

7

8.3 ha

In the immediate vicinity of a ZNIEFF 1

 

 

In the immediate vicinity

In the immediate vicinity

Yes, presence of several protected species.

 

8

3.9 ha

 

Yes, 3.1 ha impact on the area.

In the immediate vicinity

In the immediate vicinity

In the immediate vicinity

Yes, presence of several protected species.

 

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.

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Notes

1 The commune is the smallest unit of local government in France. While it is roughly equivalent in size to an English parish council, it has much more extensive powers, including over planning.

2 These consist of the communes with at least one ski lift in operation listed as very large ski resorts by the ski lift operator union Domaines Skiables de France and the French National Research Institute for Agriculture, Food and Environment (INRAE) on the Stationoscope du Massif des Alpes (https://www.observatoire-stations.fr/carto.php). They are: Les Allues, Saint-Martin-de-Bellevilles (which became Les Bellevilles in 2017), Bourg-Saint-Maurice, Chamonix Courchevel, Huez, Macôt-la-Plagne, Megève, Mont-de-Lans (which became Les Deux Alpes in 2017), Morzine, Tignes and Val d’Isère.

3 This was the period of time used as the basis for my dissertation research (Sulpice, 2020).

4 Articles L.600-1 and R.600-1 et seq. of the French Planning Code.

5 Article L.153-7 of the French Planning Code.

6 Conseil d’État 5 May 2017, Commune de Saint-Bon-Tarentaise, no. 388902.

7 Conseil d’État, 10 February 2010, Commune de Saint Lunaire, no. 327149.

8 Lyon administrative court of appeal, 22 February 2011, Commune de Chamonix, no. 8LY00170.

9 Lyon administrative court of appeal, 31 July 2012, Commune de Chamonix, no. 12LY00091.

10 Lyon administrative court of appeal, 3 December 2013, Commune de Chamonix, no. 12LY00091.

11 Ibid.

12 Ministerial response no. 39759 of 22 February 2022, p. 1165.

13 Zone naturelle d'intérêt écologique, faunistique et floristique: type of classification of areas recognised for their biodiversity.

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Table des illustrations

Titre Figure 1. Tourist capacity of mountain communes in the Alps in 2017
Crédits Atlas environnemental des stations de ski et des communes supports de stations, General Council for the Environment and Sustainable Development (Conseil général de l’environnement et du développement durable, CGEDD), April 2019, p. 15.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-1.png
Fichier image/png, 1,4M
Titre Figure 2. Interactions between ski resorts and protected areas (excluding Natura 2000 sites) in the Alps in 2017
Crédits Atlas environnemental des stations de ski et des communes supports de stations, CGEDD, April 2019, p. 25.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-2.png
Fichier image/png, 1,2M
Titre Figure 3. Proportion of ski resorts overlapping with protected areas in the Alps in 2017. Ski resorts for which land use could not be calculated are not included
Crédits Atlas environnemental des stations de ski et des communes supports de stations, CGEDD, April 2019, p. 24.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-3.png
Fichier image/png, 217k
Titre Figure 4. Protected areas overlapping ski resorts in the Alps in 2017, by type
Crédits Atlas environnemental des stations de ski et des communes supports de stations, CGEDD, April 2019, p. 24.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-4.png
Fichier image/png, 486k
Titre Figure 5. Protected areas and management of species and protected species in the Maurienne area
Crédits Initial environmental assessment – Maurienne SCOT, approved on 25 February 2020, p. 277.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-5.png
Fichier image/png, 937k
Titre Figure 6. Percentage of Conseil d’État cases involving planning
Crédits Sulpice, 2020, p. 11.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-6.png
Fichier image/png, 37k
Titre Figure 7. Planning and environmental litigation cases handled by the Grenoble administrative court and nationally
Crédits Sulpice, 2020, p. 12.
URL http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/docannexe/image/12785/img-7.png
Fichier image/png, 35k
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Oriane Sulpice, « Planning Litigation in Ski Resorts as a Reflection of Territorial Conflicts in the French Northern Alps »Journal of Alpine Research | Revue de géographie alpine [En ligne], 112-1 | 2024, mis en ligne le 14 avril 2024, consulté le 15 juin 2024. URL : http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/rga/12785 ; DOI : https://0-doi-org.catalogue.libraries.london.ac.uk/10.4000/rga.12785

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Auteur

Oriane Sulpice

Lecturer in Public Law, Julie-Victoire Daubié Faculty of Law, Transversales research group, Université Lumière Lyon 2

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