CASE OF DE GEOUFFRE DE LA PRADELLE v. FRANCE
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
John Freeland
7. Mr Raymond de Geouffre de la Pradelle is a French national and practises as a lawyer (avocat). He lives in Paris, where he has his chambers. He owns an estate of about 250 hectares in the département of Corrèze. The River Montane crosses the property, which lies within the administrative districts (communes) of Saint-Priest-de-Gimel and Gimel. In order to provide an electricity supply for the château of Saint-Priest, which was on his land, he envisaged converting a long-disused hydroelectric dam into a self-contained miniature power-station. On 9 January 1976 Électricité de France gave its approval. On 21 January 1977 and 10 April 1979 the Council of the département of Corrèze consented in principle. 8. On 3 April 1980 the Minister for the Environment and the Quality of Life decided to set in motion proceedings to designate the land in the Montane valley as an area of outstanding beauty and of public interest; an area of 80 hectares was affected, most of it belonging to the applicant. The Prefect of Corrèze informed the applicant of this in a letter of 12 May 1980; pursuant to section 9 of the Law of 2 May 1930 on the conservation of natural monuments and places of interest (see paragraph 18 below), which prohibits for a period of twelve months any alteration of the state of a site that is in the process of being designated, he also refused the application for permission to undertake hydroelectric works. 9. Together with the seven other property owners affected, the applicant was invited to submit any comments he might have on the designation proposal (section 5-1 of the Law of 2 May 1930 - see paragraph 18 below), and he indicated his objections in a letter of 22 May 1980 to the Prefect of Corrèze. 10. A public inquiry was opened by a prefectoral decision of 7 October 1980, which was notified personally to the parties concerned (Article 4 of Decree no. 69-607 of 13 June 1969 - see paragraph 19 below). Mr de Geouffre de la Pradelle sent the Prefect a statement of his objections in which he challenged the point of designating the land in the first place and suggested organising an inspection of the site by all the parties concerned. 11. On 4 July 1983, following a favourable report by the National Places of Interest Commission, the Prime Minister, after consulting the Conseil d’État, issued a decree (section 6 of the Law of 2 May 1930 -see paragraph 18 below) designating the Montane valley. On 12 July the Official Gazette (Journal officiel) published the following extract: "By a decree dated 4 July 1983, the area formed by that part of the Montane valley situated within the administrative districts of Gimel and Saint-Priest-de-Gimel is designated as one of the areas of outstanding beauty in the département of Corrèze." The present decree shall be notified to the Prefect, Commissioner of the Republic for the département of Corrèze, and to the mayors of the districts concerned. 12. On 13 September 1983 the Prefect of Corrèze served the full text of the decree at the applicant’s Paris home, together with a letter that read: "... I have the honour to notify to you by this letter the decree of 4 July 1983 designating the area formed by the Montane valley at Gimel and St-Priest-de-Gimel, which is partly situated on your property, as a conservation area. I should perhaps remind you that in the conservation area you are required to comply with the obligations laid down in the amended Law of 2 May 1930 on the conservation of places of interest, and in particular in sections 11, 12 and 13, which deal with transfers, alterations and the creation by agreement of any easements which might affect a designated place of interest. ..." 13. On 27 October 1983 the applicant, acting through his lawyer, applied to the Conseil d’État for judicial review of the decree of 4 July 1983. 14. As his main submission, the Minister for Town Planning, Housing and Transport argued that the application was "apparently made out of time"; as the designation decree did not contain any "special directions", the time within which any appeal had to be brought ran from its publication in the Official Gazette. 15. In his reply the applicant began by challenging the administrative authorities’ interprétation of Articles 6 and 7 of the decree of 13 June 1969 (see paragraph 19 below), according to which, in the absence of any special directions, the time within which any appeal had to be brought ran from the publication of the designation decision in the Official Gazette. He regarded the approach adopted by the administrative authorities as being a likely source of difficulties for members of the public. Could it reasonably be asked of people, he continued, to envisage exceptions being made to the normal rule, namely that the time allowed for appealing should begin to run from publication in the case of general regulatory decisions and from notification in the case of individual decisions? Where appeals and the procedures for bringing them were concerned, things should be simple. And if, as in the instant case, there was no good reason for making an exception, it was only right to retain a practice consistent with ordinary law. He added that, at all events, if the authorities’ interprÉtation were to prevail, Articles 6 and 7 would have to be considered unlawful as being contrary to the principle of equality in that an owner of property covered by such a decision would be less favourably treated than other persons affected by individual measures. In the alternative, he complained of the incompleteness and irregularity of the publication of 12 July 1983 (see paragraph 11 above), which did not enable the persons concerned to acquaint themselves with the exact scope of the designation. In his submission, the time allowed for appealing had begun to run only when the full text of the decree was made available to the public at the Corrèze prefecture; and the administrative authorities had not shown that the application registered on 27 October 1983 had been registered more than two months after the full text had been made available. Mr de Geouffre de la Pradelle alleged, lastly, that the impugned measure was a naked misuse of power designed to frustrate his modernisation scheme (see paragraph 7 above) and the exercise of the water rights associated with his status as a former producer of electricity. 16. On 7 November 1986 the Conseil d’État, accepting the submissions of the Government Commissioner (commissaire du gouvernement), declared the application inadmissible for the following reasons: "... By Article 49 of the Ordinance of 31 July 1945, ‘unless otherwise provided by legislation, an application to the Conseil d’État against a decision by an authority, court or tribunal within its jurisdiction shall be admissible only within a period of two months; this period shall run from the date of publication of the disputed decision unless it has to be notified or served, in which case the period shall run from the date of notification or service’. By the provisions of Article 6 of the decree of 13 June 1969, decisions whereby a natural monument or a place of interest is designated are published in the Official Gazette. Although, under Article 7 of the same decree, these decisions are notified to the property owners concerned where they contain special directions designed to alter the state or change the use of the site, and although the time within which any appeal to the courts must be brought runs in that case only from the notification of the designation decree or order, this latter provision applies only where it is necessary to give notice to the property owner to alter the state or change the use of the site. In other cases, however, the time in which any appeal to the courts has to be brought runs from the publication of the designation decision in the Official Gazette, even if after that publication the decision was notified to the property owner. It appears from the evidence that the impugned decree designating the area formed by the Montane valley in the département of Corrèze did not include any notice to the property owners to alter the state or change the use of the site. It follows that, in accordance with the provisions referred to above, the time within which any appeal to the courts against the said decree had to be brought ran from the date of its publication in the Official Gazette. An extract from the decree was published in the Official Gazette of 12 July 1983, together with the information that the full text could be consulted at the Corrèze prefecture. That being so, the applicant is not justified in contending that the publication was incomplete or irregular and consequently not such as to make time begin to run for the purposes of bringing an appeal. The application for review of the impugned decree was registered only on 27 October 1983, that is to say after the expiry of the time allowed for appealing under the provisions of the decree of 13 June 1969 that have been examined above. In order to overcome the fact that his application was out of time, Mr de Geouffre de la Pradelle maintained that these provisions were unlawful because they gave rise to discrimination to the detriment of the property owners of designated places of interest, seeing that these property owners did not have the same time-limits for appealing against designation decisions as other recipients of individual decisions. But a decision to designate an area of outstanding beauty is not in the nature of an individual decision. Accordingly, the ground based on the argument that the impugned decree infringed the rules on the notification of individual acts and decisions fails. It follows from all the foregoing considerations that the application is out of time and therefore inadmissible. ..." 17. In November and December 1986 Mr de Geouffre de la Pradelle approached the Architect’s Department of the département of Corrèze to seek help with restoration of the site, which had been devastated by the exceptionally high winds of November 1982. His application was unsuccessful. 18. In their current form the relevant provisions of the Law of 2 May 1930 provide: PART II - LISTING AND DESIGNATION OF NATURAL MONUMENTS AND PLACES OF INTEREST "In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic, historic, scientific, legendary or scenic point of view. ... Listing shall be effected by means of an order made by the Minister for Cultural Affairs. A decree issued after consultation of the Conseil d’État shall lay down the procedure for notifying the listing to the property owners or for publishing it. Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument, or if it is impossible for the authorities to ascertain the identity or address of the owner. On the land within the boundaries laid down in the order, listing shall entail an obligation on those affected not to undertake any works other than those relating to day-to-day agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities four months’ notice of their intention." "Where it is proposed to designate a natural monument or place of interest belonging wholly or in part to persons other than those listed in sections 6 and 7, those affected shall be invited to submit their comments according to a procedure which shall be laid down in a decree issued after consultation of the Conseil d’État." "A natural monument or place of interest forming part of the public or private property of the State shall be designated by means of an order made by the Minister for the Arts if there is agreement with the minister within whose field of responsibility the natural monument or place of interest lies and with the Minister of Finance. ... If there is no such agreement, designation shall be effected by means of a decree issued after consultation of the Conseil d’État." "A natural monument or place of interest forming part of the public or private property of a département or an administrative district (commune) or belonging to a public institution shall be designated by means of an order made by the Minister for the Arts if the public authority that owns it has consented. Otherwise designation shall be effected, after the opinion of the National Commission on Natural Monuments and Places of Interest has been sought, by means of a decree issued after consultation of the Conseil d’État." "A natural monument or place of interest belonging to any person other than those listed in sections 6 and 7 shall be designated by means of an order made by the Minister for Cultural Affairs, after the opinion of the département’s Committee on Places of Interest, Views and Landscapes has been sought, if the owner consents. The order shall lay down the designation conditions. Failing the owner’s consent, the designation shall be effected after the opinion of the National Commission has been sought, by means of a decree issued after consultation of the Conseil d’État. Designation may confer on the owner the right to compensation if it entails any alteration of the state or change in the use of the site causing direct, pecuniary and certain damage. ..." "From the day on which the Department of Cultural Affairs notifies the owner of a natural monument or place of interest of its intention to have it designated, no alteration may be made to the state or appearance of the site for a period of twelve months unless special permission has been granted by the Minister for Cultural Affairs, except for the day-to-day agricultural use of rural land and the normal upkeep of buildings. ..." "Designated natural monuments and places of interest may not be demolished nor may their state or appearance be altered `unless special permission has been granted’." 19. The decree of 13 June 1969 provides, inter alia: "Listing orders shall be notified by the Prefect to the owners of natural monuments or places of interest. However, where the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a hundred, the procedure of individual notification may be replaced by a general public announcement as provided for in Article 3. Recourse shall likewise be had to a public announcement where the authorities are unable to ascertain the identity or the number of the property owners." "The public announcements provided for in Article 2 ... shall be made at the instance of the Prefect, who shall have the listing order published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. This notice must be republished at the latest on the last day of the month following the initial publication. The listing order shall further be published in the relevant administrative districts, for a period of not less than one month, by being displayed at the town hall and in all other places customarily used for posting up public notices; ... ..." "The inquiry provided for in section 5-1 of the Law of 2 May 1930 before any designation decision is taken shall be organised by means of a prefectoral order ... This order shall specify the times and places at which the public may inspect the designation proposal, which shall contain: 1. an explanatory notice indicating the purpose of the conservation measure, together with any special designation directions; and 2. a plan showing the boundaries of the conservation area. The order shall be published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. It shall further be published in these districts by being displayed on notice- boards; the mayor shall certify that such publication has taken place." "For a period running from the first day of the inquiry to the twentieth day following its close, any person affected may, by means of a registered letter with recorded delivery, send comments to the Prefect, who shall inform the département’s Committee on Places of Interest ... During the same period and by the same means the property owners concerned shall make known to the Prefect, who shall inform the département’s Committee on Places of Interest..., their objections or their consent to the designation proposal. At the end of this period any property owner who has remained silent shall be deemed to have withheld consent. Where, however, the order that is the subject of the inquiry has been notified to the property owner in person, his silence at the end of the period shall be deemed to imply consent." "The designation decision shall be published in the Official Gazette." "Where a designation decision contains special directions that would alter the state or change the use of the site, it must be notified to the property owner. This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section 8 (third paragraph) of the Law of 2 May 1930." 20. The relevant provisions of the circular of 19 November 1969 are as follows: "... Law of 28 December 1967 made amendments to the Law of 2 May 1930 regarding the procedure for listing and designating places of interest, the rights and obligations of those affected as a result of listing or designation decisions and the penalties for infringement of conservation measures. Decree no. 69-607 of 13 June 1969 laid down the conditions for implementing some of the new provisions introduced by that Law. The purpose of the present circular is to define the scope of the Law of 28 December 1967 and the means of implementing it. I. Listing procedure and effects of listing ... Another innovation introduced by the Law of 28 December 1967 and the decree of 13 June 1969 is general publication as a method of informing property owners that a place of interest has been listed. There are now two possible procedures: - either individual notification, in accordance with the arrangements currently in force in all cases; or - general publication (public display and publication in two newspapers), to which the Prefect resorts when the number of property owners concerned is greater than a hundred - as with places of interest covering a large area - or when one or more property owners have not been identified. This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect, and this will be particularly appreciable in the case of very large areas. It will have the advantage of ensuring that the public are well informed before the listing order is implemented. ... II. Designation procedure and effects of designation Because designation imposes substantial obligations on property owners, it will henceforth be preceded by an administrative inquiry open not only to the property owner or owners but to any interested member of the public. ... This public-inquiry procedure shall be set in motion whenever a designation proposal is being prepared. It is still desirable that the designation proposal should be notified to property owners in person where they are known and are few in number or where they will have to be subject to special directions; but it is not compulsory. ... Lastly, it is important to note that individual notification of the designation decision continues to be compulsory (1) in order that special directions designed to alter the state or change the use of sites may be enforceable; and (2) generally, in order that the penalties provided for in section 21 may apply. ..."