SCEA FERME DE FRESNOY v. FRANCE [Extracts]
Inadmissible
The applicant company, SCEA Ferme de Fresnoy, is an agricultural partnership with unlimited liability (société civile d’exploitation agricole). Its registered office is situated at Port-Saint-Nicolas in the administrative district of Saint-Nicolas-la-Chapelle and its manager, Mr Bertrand Mangeot, acts on its behalf. It was represented before the Court by Mr C. Bremond, of the Paris Bar. The French Government were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. On 19 May 2004 counsel for the applicant company informed the Court that Mr Paul Mangeot, one of the partners in the business, had died and that his widow, together with his son, Mr Bertrand Mangeot, who was already the manager, were now the only shareholders. Counsel indicated that Mr Mangeot and his mother had expressed their wish to continue the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. Mr Bertrand Mangeot runs a 242-hectare farm in the administrative district of Montpothier (département of Aube). His father was joint manager until his death. The farm was acquired in 1971 following the expropriation of a previous agricultural holding based in Lognes. The central part of the farm consists of various farm buildings around an inner courtyard and includes a chapel and a chapter house dating from the twelfth and thirteenth centuries, which are the remains of the Templar commandery of Fresnoy. Both of those edifices are tightly integrated into the surrounding buildings. In a letter of 4 March 1986, the Aube prefecture offered a State grant for the restoration of the chapel and chapter house. The proposed grant was to cover 15% of the initial work. The applicant company declined the offer in view of the excessive share of the cost that it would have to bear. By a decision of the prefect dated 26 August 1988, the remains of the commandery were added to the secondary list of historic buildings. Following the approval of the National Historic Monuments Commission on 16 November 1992 and by a decision of 4 January 1994, the chapel and chapter house of the historic Fresnoy commandery were added to the primary list of historic buildings under the Historic Monuments Act of 31 December 1913. The reason for the listing was that “the preservation [of the buildings] ha[d] public-interest value in relation to the history of art, in view of the rarity and authenticity of the Templar architecture”. This status gave rise to various sets of proceedings. As the applicant company had envisaged building a farm shed near the chapel and chapter house, various meetings were organised with the national heritage architect and the architecture authority for the département of Aube with a view to finding a new location, since the applicant company’s initial plan could no longer be implemented owing to the constraints of the historic monument protection. On 24 March 1990 the applicant company lodged an application for a building permit in respect of a farm machinery workshop, in spite of the national heritage architect’s negative opinion, which was subsequently confirmed on 3 August 1990. By a decision of the prefect dated 10 August 1990, the building permit was refused on the ground that “the intended construction would have an adverse effect on the chapel of the Templar commandery and would undermine the current harmony of the buildings as a whole”. The applicant company applied to the Châlons-sur-Marne Administrative Court for judicial review of the prefect’s decision. On 12 December 1990 a further meeting was held on the site with a view to finding a possible location for the farm machinery workshop. In a letter of 4 April 1991, the national heritage architect informed the applicant company, among other things, that the purpose was not to prevent it from building but to help it draw up the best possible plan, taking into account all the technical, operational and site-related constraints. In a judgment of 1 December 1992, the Châlons-sur-Marne Administrative Court set aside the decision of 10 August 1990 to refuse the building permit, on the ground that the prefect had based his decision on an incorrect assessment of the facts. In a judgment of 30 June 1994, the Nancy Administrative Court of Appeal dismissed an appeal by the Minister for Infrastructure, Housing and Transport on the ground that the national heritage architect had not given his opinion within the statutory period. On 3 March 1995 the applicant company applied for a permit to build a shelter. On 8 July 1995 the national heritage architect advised against the granting of a permit. By a decision of 19 July 1995, the prefect denied the applicant company a building permit in respect of a maintenance and repair workshop on the ground that “the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under the Act of 31 December 1913 (chapel and chapter house)”. On 26 June 1996 the national heritage architect received Mr Mangeot, who submitted to him a plan for the construction of a farm building situated to the west of the main farm and aligned with an existing shed (adjoining the chapel). The national heritage architect gave his approval in principle, subject to a few minor adjustments, as the plan complied with the main guidelines laid down by the architecture and heritage authority of the département of Aube. On 26 November 1996 the applicant company applied for a building permit. By a decision of the prefect dated 22 January 1997, the building permit was granted subject to certain conditions, such as the obligation to plant a screen of standard trees of local species. The extra cost incurred on account of the permit conditions was 1,850 French francs (FRF). On 23 September 1997 the applicant company applied for a permit to demolish two unlisted buildings that were not adapted to the needs of the farm. By a decision of the prefect dated 9 December 1997, the demolition permit was refused on the following grounds: “... the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under the Act of 31 December 1913 (Fresnoy Farm). ... the disappearance of these traditional constructions with their specific character would detract from the immediate surroundings of the above-mentioned protected buildings and would undermine the quality of their environment; restoration with a view to reuse has to be envisaged.” On 21 March 2000 the applicant company lodged two fresh applications for building permits. On 3 May 2000 the national heritage architect advised in favour of both applications, subject to the following conditions: “In order to harmonise this development with the neighbouring traditional constructions, which form the setting of the above-mentioned protected building: [In respect of the first plan:] the cladding will be of a dark colour ... the roofing will be red-brown in colour and mat in appearance [In respect of the second plan:] the building to be erected will be clad entirely with wooden slats [tavillons] the roofing will be red-brown in colour and with no gloss effect.” By two decisions of the prefect dated 17 May 2000, the applicant company was granted two building permits, subject to the above-mentioned conditions. As the applicant company failed to proceed with the building work within the periods laid down in the decisions, the validity of the two building permits has since lapsed. On 11 March 1994 the applicant company applied to the Conseil d’Etat for judicial review of the listing decision of 4 January 1994. In a judgment of 22 February 1995, the Conseil d’Etat dismissed the applicant company’s application for judicial review and confirmed both the formal validity and the substantive legality of the impugned decision. The Conseil d’Etat noted in particular, concerning the substantive legality of the listing decision, that “the chapel and chapter house of the Fresnoy commandery ... constitute a rare example of Templar architecture ... the preservation [of which] has public-interest value for artistic and historical reasons, such that the listing thereof as a historic monument can legally be justified ... [and] the second paragraph of section 5 of the Act of 31 December 1913 ... cannot have the purpose or effect of obliging the authorities to attach any easements or obligations to the listing status other than those resulting, pursuant to the Act of 31 December 1913, from the listing itself”. On 7 November 1994, in a letter addressed to the prefect of the département of Aube, the applicant company sought FRF 5,000,000 in compensation under section 5 of the Act of 31 December 1913, on the ground that “the listing has clearly caused harm to the claimant company’s agricultural activity, by creating in the very heart of the farm an easement capable of rendering impossible any development of the farm, or even of seriously undermining its day-to-day operations”. Having regard to the fact that the listing had obliged the company to “rebuild all the farm buildings currently at its disposal in a position other than that in which the operational buildings [we]re currently located”, and to the fact that this total reconstruction had been assessed by experts at FRF 6,777,000, the applicant company concluded its letter with a claim for that sum under the second paragraph of section 5 of the above-mentioned Act of 1913. Having failed to reach a friendly settlement of the compensation claim, the applicant company lodged an application for compensation on 20 December 1995 with the expropriations judge at the Troyes tribunal de grande instance. At a hearing on 6 June 1996, the Government Commissioner noted that there was “some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision”. In a judgment of 11 July 1996, the tribunal de grande instance rejected the application, noting in particular: “In the present case ... only two parts of the farm buildings have been listed, representing 4% of the total developed area. The damage claimed by SCEA Ferme de Fresnoy mainly concerns developments affecting non-listed structures; accordingly, the applicant company has not shown that it has sustained damage in respect of the listed premises alone or as a result of a change affecting the premises and capable of causing such damage; it is not therefore entitled to rely on the provisions of section 5 of the Act of 31 December 1913 since the dispute concerns only the area surrounding the listed premises and, moreover, the applicant company is bound only by restrictions that do not preclude it from altering neighbouring premises if it abides by the prescriptions laid down by the authorities. In these circumstances, it is appropriate to reject the application by SCEA Ferme de Fresnoy, which has not sustained direct and established pecuniary damage as a result of the listing of its buildings.” The applicant company appealed against that judgment, maintaining in particular that section 5 of the Act of 31 December 1913 was to be construed as creating an entitlement to compensation for all forms of damage sustained by an owner as a result of a listing decision, and not simply that sustained in respect of the listed buildings themselves. The applicant company further argued that “such a restrictive construction of section 5 ... would in effect deprive the owner of the compensation due to him for damage arising from a serious violation of his right of property, in breach of the French Constitution and the European Convention on Human Rights, which expressly guarantee respect for such right”. The Government Commissioner noted, as at first instance, that there was “some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision”. He stated that the case in issue “concern[ed] an easement for the protection of the vicinity of a listed structure ... [which was] not to be confused with easements arising directly from a listing decision”. He concluded that the grounds submitted in support of the applicant company’s claim did not derive directly from the listing decision. On 24 June 1998 the Rheims Court of Appeal upheld the judgment and gave the following reasoning: “– Construction of section 5 of the Act of 31 December 1913 The appellant company claims that section 5 of the Act ... is to be construed as pertaining to the entire grouping of buildings, incorporating the listed structures. However, that provision refers only to the listing decision. The notion of ‘premises’ as used in the second paragraph of section 5 of the Act of 31 December 1913 pertains only to the premises designated in the listing decision. The decision of 4 January 1994 states that ‘the chapel and chapter house of the historic Fresnoy commandery shall be listed as historic monuments ...’. It is therefore appropriate to dismiss the claim of SCEA Ferme de Fresnoy whereby it contends that the term ‘premises’ as used in the above-mentioned section 5 should be construed as covering the entire property, which would be tantamount to the listing of the whole complex of buildings. – Conditions of application of section 5 of the Act of 31 December 1913 For there to be an entitlement to compensation, the easement relating to the listing must have entailed a change in the condition or use of the premises giving rise to direct, substantiated and established damage, for which the burden of proof lies with the claimant. In this connection SCEA Ferme de Fresnoy based its claim on the restrictions imposed on it, as a result of the listing, in respect of its plans for demolition, the construction of a farm shed or development of the farm site. However, those restrictions, created by prior agreement with the national heritage architect, are not the result of any change in the status or use of the premises, as the chapter house and chapel have not been affected by such changes. The restrictions imposed on the company result from the application of Article R. 421-38-4 of the Planning Code, which protects the view around a listed building by requiring the agreement of the national heritage architect prior to any demolition or construction. Such an easement, pertaining to the protection of the area surrounding a listed building, does not give rise to the compensation provided for in the current legislation. Moreover, SCEA Ferme de Fresnoy has obtained permission to erect a storage building, subject to the approval of the plan by the national heritage architect. Lastly, such easements for the protection of the area surrounding a listed building derive from the law and cannot give rise to compensation unless it is specifically provided for in a statutory instrument. ...” The applicant company subsequently lodged an appeal on points of law, in support of which it submitted a single ground with four limbs. One of its claims was that the Court of Appeal’s decision had been devoid of the statutory basis required by Article 55 of the Constitution, as it had denied compensation for damage resulting from the listing without considering whether such refusal was contrary to the provisions of Article 14 of the Convention or Article 1 of Protocol No. 1. On 8 March 2000 the Court of Cassation, rejecting the submissions of the Advocate-General, dismissed the appeal in a judgment containing the following reasoning: “... having found, firstly, that section 5 of the Act of 31 December 1913 provided for compensation following a listing by official order if the resulting easements and obligations entailed a change in the condition or use of the premises and, secondly, that the easement pertaining to the protection of the area surrounding a listed building did not give rise to any compensation under the current legislation, the Court of Appeal, leaving aside a subsidiary consideration and without being required to make a determination that had not been sought from it as to the applicability of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of Article 1 of Protocol No. 1, rightly considered that the notion of ‘premises’ pertained only to those designated in the listing decision and dismissed the company’s compensation claim, thus justifying its decision in law.” ... In France, the first provisions for the protection of historic monuments date back to 1836, when the church of Saint-Savin-sur-Gartempe was listed. However, until 1887 the listing process had few legal effects and the provisions of an Act of 30 March 1887 were mainly “contractual” in nature. It was only in 1913 that a meaningful protection system was provided for in France with the Historic Monuments Act of 31 December 1913, the basic statute governing heritage, which has since been amended a number of times. The Act mainly lays down the procedures whereby immovable property whose preservation is in the public interest for historical or artistic reasons is to be added to the secondary or primary historic monuments lists. Such decisions carry various legal effects and may create easements or obligations which affect the property itself. Only in respect of property on the primary list may the adverse consequences of easements and obligations relating to listing, under certain circumstances, give rise to compensation at the request of their owner, under the second paragraph of section 5 of the Act of 31 December 1913. The 1913 Act, in sections 13 bis and 13 ter, also provides for a protected area around buildings deemed to be of interest, such that, through the review of applications for building or demolition permits by the owners of property in the vicinity of listed buildings, their surroundings are protected and the aesthetic quality of the adjacent area is preserved as far as possible. Such easements, created for the benefit of owners of historic buildings, affect the adjacent property. The protection of a historic monument, whether by secondary listing or by primary listing, under the amended Historic Monuments Act of 31 December 1913, automatically creates a conservation area around it, extending to about 78.5 hectares. Over the past century, some 40,000 monuments have been protected under this legislation in France. In view of the geographical proximity of some monuments or even their superposition in certain cases, the aggregate surface area of the conservation areas thus created, and consequently the number of properties concerned, are considerable. The total protected area becomes even greater when account is taken of sites classified under the Law of 2 May 1930 on the protection of natural monuments and places of artistic, historic, scientific, legendary or scenic interest, together with the architectural and landscape heritage areas (zones de protection du patrimoine architectural et paysager – ZPPAUP) set up under sections 69 to 72 of Law no. 83-8 of 7 January 1983 on the division of powers between municipalities, départements, regions and the State. “Immovable property whose preservation is in the public interest for historical or artistic reasons shall be entered on the primary list of historic monuments, as a whole or in part, by the minister responsible for the fine arts, in accordance with the distinctions laid down in the following sections. Immovable property subject to listing under the present Act shall include: ... 2. Immovable property of which listing is necessary to allow for the isolation, clearing or cleaning of a listed building or building proposed for listing; 3. In general terms, developed or undeveloped property located within the field of view of a listed building or building proposed for listing. For the purposes of this Act, the criterion of being located within the field of view of a listed building or building proposed for listing shall be regarded as applying to any other developed or undeveloped property that is visible from the former, or at the same time as the former, and is situated within a range of not more than 500 metres. On an exceptional basis this range may be extended beyond 500 metres. A decision of the Conseil d’Etat, adopted further to an opinion of the National Historic Monuments Commission, shall indicate the monuments to which such extension may apply and shall determine the range of the protected area in each case. From the date on which the fine arts authority notifies the owner of a listing proposal, all the effects of such listing shall apply automatically to the property concerned. They shall cease to apply if the listing decision is not taken within ‘twelve months’ following such notification. ...” “The following property shall be regarded as having been validly listed prior to the enactment of this law: (1) buildings listed on the general schedule of listed monuments, officially published in 1900 by the fine arts authority; (2) those and other buildings that have been listed by means of a decision [arrêté or décret] under the Act of 30 March 1887. Within a period of three months, the schedule of buildings regarded as listed prior to the enactment of this Act shall be published in the Official Gazette. An entry shall be drawn up for each of those buildings giving full particulars thereof; the fine arts authority shall ensure that the entry is filed with the appropriate Land Registry for the site of the property. Such registration shall not give rise to any taxes payable to the Treasury. The primary list of protected buildings shall be kept up to date and published at least once every ten years. Public or private buildings, or parts of buildings, which, without warranting an immediate proposal for addition to the primary list, nevertheless have sufficient historical or artistic interest for their preservation to be desirable, may at any time be added to the secondary list by decision of the regional prefect, or, where such secondary listing is proposed by the National Historic Monuments Commission, by decision of the minister responsible for cultural affairs. Secondary listing under the same conditions may also apply to any developed or undeveloped property situated within the field of view of a building already listed on the primary or secondary list. The regional prefect shall ensure that decisions to add buildings to the secondary list of historic monuments are registered at the appropriate Land Registry for the site of the listed building. Such registration, which shall not give rise to any taxes payable to the Treasury, shall be carried out in accordance with the formalities and procedures laid down by the legislation on land registration. Owners shall be notified of such secondary listing, which shall impose on them an obligation not to make any alterations to the listed building or part of a building, without having informed the regional prefect, giving four months’ notice, of their intention and of the work they propose to carry out. The minister may object to such work only by initiating the primary listing procedure as provided for herein. However, if the purpose or effect of the work is to divide up or strip the building or part of building on the secondary list, for the sole purpose of selling all or part of the materials thus detached, the minister shall have five years in which to decide on its primary listing and may, in the meantime, order the suspension of the work in question. The minister responsible for education shall be authorised to subsidise up to 40% of the actual cost of any maintenance or repair work that may be required for the preservation of buildings or parts of buildings listed on the secondary list of historic monuments. The work shall be carried out under the supervision of the historic monuments authority.” “Property belonging to any persons other than those enumerated in sections 3 and 4 shall be added to the primary list by decision of the minister responsible for cultural affairs, where the owner has given consent. The decision shall lay down the conditions attached to such listing. Where the owner has not given consent, the addition to the primary list shall be decided by an order of the Conseil d’Etat which shall lay down the conditions attached to the listing and in particular any easements or other obligations thus created. The primary listing may then entitle the owner to compensation if, as a result of such easements or obligations, a change in the status or use of the premises gives rise to direct and established pecuniary damage. The application for compensation shall be lodged within six months from the notification of the primary listing decision. If the compensation cannot be agreed upon by friendly settlement, its amount shall be determined by the expropriations judge. The government may decide not to act upon such a listing order under the conditions thus laid down. In such cases it shall be required, within three months from the notification of the judgment, to repeal the listing decision or to proceed with the expropriation of the property.” “When immovable property is located within the field of view of a listed building, it may not be subjected, whether by private owners or by public authorities or establishments, to any new construction, demolition, deforestation, transformation or alteration capable of affecting its appearance, without prior authorisation. Building permits issued under legislation on building lines and on municipal and regional land-use and urban development plans shall constitute authorisation, as provided for in the preceding paragraph, provided they have been endorsed with the approval of the national heritage architect.” “Where it does not concern work for which a building permit, a demolition permit, or the authorisation provided for under Article R. 442-2 of the Planning Code is necessary, the application for authorisation under section 13 bis shall be addressed to the prefect, who shall give his decision after seeking the opinion of the national heritage architect. However, if the minister responsible for historic monuments has decided to take up the matter, authorisation may be given only with his express agreement. If the prefect has not notified his response to the applicants within a period of forty days from the filing of their application, or if they are not satisfied by the response they have received, they may refer the matter to the minister responsible for cultural affairs within two months from the notification of the prefect’s response or following the expiry of the forty-day period allowed for such notification. The minister shall decide. If his decision has not been notified to the applicants within a period of three months following receipt of their application, the application shall be deemed to have been refused. The applicants shall comply with the restrictions imposed on them for the protection of the listed building, either by the national heritage architect in the case referred to in the second paragraph of section 13 bis, or by the prefect or minister responsible for cultural affairs in the cases referred to in the first, second and third paragraphs of this section.” “In accordance with section 13 bis of the Historic Monuments Act of 31 December 1913, as amended, where immovable property is located within the field of view of a listed building, it may not be subjected, whether by private owners or by public authorities or establishments, to any new construction, demolition, deforestation, transformation or alteration capable of affecting its appearance, without prior authorisation. Building permits shall constitute such authorisation provided they have been endorsed with the approval of the national heritage architect.” “Where a construction is located within the field of view of a listed building, the building permit may be issued only with the authorisation of the national heritage architect. Pursuant to the third paragraph of section 13 bis of the Historic Monuments Act of 31 December 1913, as amended, the regional prefect, upon a written request by the mayor or authority empowered to issue the building permit, sent by registered letter with return receipt within one month following notification of the national heritage architect’s opinion, shall, after consulting the regional commission on heritage and sites, deliver an opinion superseding that of the national heritage architect. Where the mayor is not the authority empowered to issue the permit, the regional prefect shall notify the authority in question of the request he has received from the mayor. The opinion of the regional prefect shall be notified to the mayor and to the authority empowered to issue the permit. The regional prefect shall be deemed to have confirmed the opinion of the national heritage architect if he has not responded within four months following receipt of the request, unless the matter has, in the meantime, been taken up by the minister responsible for culture. In such a case, the permit may be issued only with the express agreement of the minister. The minister’s decision to take up the matter shall be notified to the applicant, to the mayor and to the competent authority. If the national heritage architect refuses to give his approval or gives conditional approval, the authority empowered to issue the permit may, within one month from receipt of that decision, refer the matter to the minister responsible for historic monuments. For such purpose that authority shall transmit to the minister the file on the application for a building permit, together with the document stating the position of the national heritage architect. In cases where the mayor is empowered to issue a building permit, he shall inform the prefect of such referral. The permit may then be issued only with the express agreement of the minister. If the minister fails to respond within two months from the date of referral he shall be deemed to have confirmed the position of the national heritage architect.” “There shall be no entitlement to compensation for easements created pursuant to this Code in respect of roads, sanitation, aesthetic appearance, or for other purposes, and pertaining in particular to the use of land, the height of edifices, the proportion of developed and undeveloped land within each property, prohibited construction in certain areas and along certain roads, or the distribution of buildings between different areas. However, compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct, pecuniary and established damage. Unless a friendly settlement is reached, such compensation shall be assessed by the administrative court, which shall take into account the increase in value of a building produced by the implementation of a land-use plan that has been made public, or of an approved local-development plan or equivalent document.” The latter provision and the question of statutory easements have been addressed in various ways in case-law (see, inter alia, Commune de Gap-Romette, judgment of the Conseil d’Etat of 14 March 1986, and Ministre de la Culture c. SCI Villa Jacob, judgment of the Conseil d’Etat of 20 January 1989). As to the obligation of the administrative court to examine, if necessary proprio motu, the merits of an application for compensation under Article L. 160-5, see the judgment delivered by the Conseil d’Etat on 19 December 1984 in Soc. Ciments Lafarge. Moreover, the Conseil d’Etat has stated, in the light of Article 1 of Protocol No. 1, that Article L. 160-5 of the Planning Code “does not set out a general and absolute principle, but expressly provides for two exceptions as regards the vested rights of owners and a change in the previous condition of the land. Lastly, the Article in question does not prevent an owner whose property is affected by an easement from claiming compensation in exceptional cases where the aggregate of the conditions and circumstances in which the easement has been created and implemented, as well as its substance, have imposed on the owner an individual and excessive burden out of proportion with the general-interest objective pursued. In these circumstances, the applicant is not justified in asserting that Article L. 160-5 of the Planning Code is incompatible with the provisions of Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms” (Bitouzet, judgment of the Conseil d’Etat of 3 July 1998, Recueil Lebon 1998, p. 288, and Lady Jane, judgment of the Conseil d’Etat of 7 January 2000). ... This convention provides, in particular: “The Parties to this Convention agree to: (a) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights; (b) recognise individual and collective responsibility towards cultural heritage; (c) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal; ...” “To sustain the cultural heritage, the Parties undertake to: (a) promote respect for the integrity of the cultural heritage by ensuring that decisions about change include an understanding of the cultural values involved; (b) define and promote principles for sustainable management, and to encourage maintenance; ...”