Unique buildings: restrictive application; projects of national interest
Posted by Manuel Casal | Section Juris. Administrative , Decisions
"Fourth. - On the application of Article 57.d of the general ordination of planning and construction of the Encamp on 1 June 1983:
This text provides:
"In cases of public interest, sports centers and playgrounds in general, in which the type of building does not comply fully to present the ordinances may be presented to the appropriate services of the Hon. Common, a draft of that building for study and, where appropriate, subsequent approval. "
It is the literal reading of this text is a very restrictive provision, which must be interpreted strictly and can not justify derogations from the nature of those provided for in the home for the elderly . Therefore, the arguments presented by the Hon. Joint Encamp be rejected.
Fifth. - Should specify the target of litigation from the viewpoint of the regulation applicable to the subject.
In the judgment dated 27 July 2009 (Judgment 65-2009), the Chamber pointed out what was the main issue concerned in this dispute:
"The essential question is whether the concept of" single building "contained in Article 192 of the Urban Rules is consistent with the provisions of Article 61 of LGOTU on the" projects of national interest. "
This judgment expressly stated that the notion of "single building" was not compatible with Article 61 of LGOTU relating to "projects of national interest." This conclusion is clear from this judgment, although the whole of Article 192 could not be annulled, because the room had to respect the terms of appeal and appeal • Policy status could not ultra little.
On the basis of law Fourth, the Chamber said:
"Article 192 already mentioned" investing "in some way the procedure, a community initiative followed an approval by the Government. The concept of "single building" as defined in this Article 192 is therefore consistent with the provisions of Article 61 of LGOTU and the provisions of Article 192 relating to the exceptions provided for in this unique building s '• must cancel up. "
It is also clear from the second paragraph of the decision that is indeed the very concept of "single building" has been declared contrary to Article 61 of LGOTU:
"Second: Trail upheld the sentence and annul Article 192 (paragraph 1.1 to say" except in cases of singular construction "and paragraph 2 where it says" except in cases of planned or unique buildings, and all section 5) of the rules included in the planning poupo of Encamp. "
Therefore must take the consequences of the legal context in which to appreciate the construction of a residence for the elderly.
According to the Hon. Joint Encamp, "is not a project of national interest, but a project of community interest and intended only for the elderly in the parish of Encamp" (see folio 21, the resource the Hon. Joint Encamp against CTU).
This analysis is incorrect because such a project should be considered as a project of national interest within the meaning of Article 61 of LGOTU.
Indeed, we extract the logic of these provisions.
Clearly, building a home for the elderly is a work of public and this is not the Government discussed the MI: see for example, the resolution of the Government dated December 20, 2006 (folio 146) "the public utility of a residence for the elderly is not debatable."
But such a project is a project of national interest within the meaning of Article 61 of LGOTU:
"Projects of National Interest:
Projects of national interest are those for the construction of road and communication infrastructure, the implementation of water policy, sanitation and energy to fighting pollution and protecting nature, and also the provision of services of a health care and educational, cultural, administrative, security and civil protection. The buildings typical of projects of national interest are not subject to the approval of the commons "
This project will be entered in the category of "services of a health care", given its characteristics, accessing the general planning regime.
Accordingly, the appeal filed by the Hon. Joint Encamp be rejected. "
Judgment of the Superior Court room administrative dated 12/4/10, speaker B. Plagnet, number 17-2010.
Tags: urbanism
