Real Property Law
Conseil d'Etat, 21 December 2023, no. 471189
By a resolution dated 16 October 2019, the municipal council of the Commune of Clomot authorised the mayor to enter into a public domain occupation agreement with a company for the purposes of a wind farm project.
This decision was appealed to the Dijon Administrative Court on the grounds of ultra vires. The latter declined jurisdiction, as the Administrative Courts of Appeal have jurisdiction in the first and last instance over challenges to public domain authorisations, and the Lyon CAA ruled on the appeal.
The applicants argued that the decision in question was irregular and that, in any event, the town council was not competent to authorise the disputed occupation.
This reasoning was not followed by the Lyon CAA, which ruled that this deliberation was superfluous insofar as the Mayor was competent to enter into this agreement:
"Even admitting that this deliberation was irregular, such a circumstance would, as such, have no impact on the legality of the contested agreement".
The Lyon CAA based its decision on the provisions of article L.2122-21 of the Code général des collectivités territoriales, which states that:
"Under the control of the municipal council and the administrative control of the State representative in the department, the mayor is generally responsible for carrying out the decisions of the municipal council and, in particular :
1° Conserving and administering the municipality's property and, as a result, carrying out all acts to protect its rights".
However, article L.2122 of the Code général des collectivités territoriales states that the mayor may, by delegation from the municipal council:
"Decide on the conclusion and revision of leases of property for a term not exceeding twelve years".
Accordingly, for the Conseil d'Etat, the Mayor is only competent to enter into an agreement for the occupation of the public domain if he has been granted a delegation by the Municipal Council, which was not proven in this case, just as the term of the agreement was not specified:
"In ruling in this way, without investigating whether a delegation had been given to the mayor pursuant to 5° of Article L. 2122-22 of the General Local Authorities Code, or what the duration of the agreement was, the court erred in law."
Accordingly, any agreement to occupy municipal property, whether in the public or private domain, must be the subject of a decision by the municipal council or, failing that, a decision by the mayor if he has been granted a delegation by the municipal council.
The Conseil d'Etat has also reiterated its consistent position that the mayor alone is competent to issue unilateral authorisations to occupy the public domain.
This is a welcome decision, as it gives local authorities a range of powers when they are planning to occupy the public domain:
- In the case of a unilateral authorisation: the mayor has sole jurisdiction;
- In the case of an occupation agreement :
- In principle, the Town Council has jurisdiction;
- The Mayor has jurisdiction if the term of occupation is less than 12 years and if he has been delegated authority by the Town Council.
