In the case, the Supreme Administrative Court, the Conseil d’État, confirmed that a mayor may lawfully refuse a building permit where a construction project is likely to worsen pressure on a municipality’s drinking water supply.
The case originated in the Var department, in the Pays de Fayence area, which comprises nine municipalities and around 31,000 inhabitants.
Following the extreme heatwave of summer 2022 and an unusually dry winter, the local council decided to adopt a “plan to control urban development and reduce water consumption,” effectively introducing a five-year pause on urban development.
Within this context, in February 2023 the mayor of Fayence refused a building permit for the construction of a five-unit residential building.
In reaching his decision, the mayor relied on a hydrogeological study carried out in July 2021. The study highlighted that two boreholes had dried up, a third was at a very low level, and it was impossible in the short term to meet projected growth in drinking water demand. These findings were compounded by the severe drought of summer 2022, which led to restrictions on household water consumption throughout the municipality and, notably, to the introduction of rotational water supply by tanker trucks.
The developer challenged the decision before the Toulon Administrative Court, arguing that drought conditions alone could not justify a refusal to grant planning permission.
In a judgement in February 2024, the administrative court dismissed the developer’s claim. It held that the mayor had lawfully based the refusal on Article R.111-2 of the French Planning Code, which allows a project to be refused if it is “likely to endanger public health or public safety.” According to the court, the water consumption generated by the proposed development was liable to aggravate an already critical situation affecting the municipality’s drinking water resources.
The Conseil d’État has recently upheld this reasoning on appeal. It ruled that the risk of a water shortage does indeed fall within the concept of public health as understood under Article R.111-2. In other words, ensuring sufficient access to potable water is a fundamental component of public health and hygiene, and threats to that access may lawfully justify the refusal of a building permit.
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