Friday “back to the field”
Every Friday, one of Landot & Associés’ four divisions broadcasts a bit of “field commentary”: a real-life experience.
We do not distribute information about the most popular and symbolic files:
• On the one hand because professional confidentiality will be violated,
• And on the other hand, because the aim of this column is precisely to show everyday work, mundane but wonderful, as we experience it with our clients, in a “little reaction to experience” (retex) way.
Today, a little ‘field feedback’ from the Department of Urban Planning, Building and Estates (UCI).
A few weeks ago, we were assigned to defend before a district judge a municipality that had refused a license to a mobile operator to install new relay antennas on the roof of a building.
More precisely, the municipality had objected to the prior permit submitted in this regard by the operator and requested that the effects of this decision be halted before the judge, so that the municipality would quickly be forced to license the installation of antennas.
One issue discussed before the judge concerned whether or not implied permission existed. Indeed, upon receipt of the advance declaration, the municipality informed the petitioner that the deadline for processing it had been increased by one month because a building engineer had to be consulted. In France, the antennas are to be installed on the roof of a building located near a building classified as a historical monument (in this case, it was a museum ).
In its appeal, the telephone company disputed this last point, saying that the opinion of the building engineer in France was not required and, therefore, the time limit for examining its advance declaration had not been increased. Therefore, the operator considered himself to have implicit authorization because he had not been notified of an express decision during the processing period of his prior authorization.
Drawing conclusions from this reasoning, the operator considered that the decision to oppose had been taken by the municipality after the birth of this implicit authorization, and therefore, the first must in fact be analyzed as a follow-up to the withdrawal of the second, and the withdrawal occurred after an illegal action because no action had been carried out. Adversarial.
In order to refute this argument, we had to show in our files that the building where the antennas were to be installed was actually located near a historical monument. This point involved making a double offer. On the one hand, it was necessary to prove that the building in question is located less than 500 meters from the historical monument, using digital maps of the neighborhood. First of all, we had to carry out a photographic report of the buildings showing that the roof of the building in which the antennas were to be installed was visible from certain parts of the museum, so that the two buildings in question (the project building and the historical monument) were in a state of view within the meaning of the Heritage Code. This demonstration was carried out, and therefore the municipality’s brief could confirm that the building engineer in France should indeed have been consulted, which automatically increased the time limit for the pre-declaration examination, and therefore the opposition decision taken by the municipality was not delayed so as not to issue an implicit declaration to the operator.
The district judge was convinced by this demonstration and ruled in favor of the municipality and rejected the operator’s request for interim relief.