Extract
[...] Reiterating the Ternon jurisprudence, the Code of Relations between the Public and the Administrative provides in Article L. 242-1 that the administration cannot withdraw a decision creating rights, on its own initiative or at the request of a third party, if it is illegal and if the withdrawal occurs within the four-month period following the adoption of this decision. By a ruling dated 7 February 2020, the Council of State considers that the administration, on its own initiative or at the request of a third party, cannot withdraw or repeal a decision affected by a 'danthonysable' flaw, even within the four-month period following the adoption of this decision. [...]
[...] This jurisprudence was modified in 2001 and, since then, the withdrawal period and the contentious appeal period have been dissociated. In the ruling Ternon Ass October 2001), the Council of State adopts a seemingly simpler position, specifying a fixed deadline for the withdrawal of illegal individual decisions, namely four months from the date of the decision. This rigid deadline loses the act's vulnerability at the end of a single deadline, whereas earlier, the withdrawal was conditional on the completion, often fraught with uncertainty, of the publicity formalities. [...]
[...] The mayor considers withdrawing the building permit. The question arises as to the legality of the mayor of Montclard's withdrawal of the building permit. We will successively consider the qualification then the conditions for withdrawing the building permit (II). The qualification of the building permit In law, the distinction between acts creating and not creating rights does not rely on any precise criterion and it is sometimes difficult to establish. Jurisprudence considers as non-creators of rights, for example: regulations, non-existent acts, recognitive acts, those obtained by fraud or even police permits. [...]
[...] However, the latter must, by virtue of Article L. 631-32 of the Cultural Heritage Code, be consulted for all works located in a protected area. Being provided for by a text, the Cultural Heritage Code, the consultation is mandatory, which is more, it leads to a binding opinion. The commune, for the delivery of a building permit, is bound both by the meaning and the content of the opinion. The mayor's building permit is therefore tainted by a procedural flaw. [...]
[...] This procedural flaw related to the consultation of the ABF taints the building permit with illegality in that it would have been capable of exercising an influence on the meaning of the decision, in this case the said permit. It follows that the procedural flaw is not 'danthonysable'. The mayor of Montclard can withdraw, on the request of an opposition elected official, the building permit, a decision that creates rights, within a period of four months from the date of this decision, i.e. by April insofar as the flaw that affects it is not 'danthonysable' and therefore taints the building permit with illegality. Therefore, the mayor of Montclard can withdraw the building permit until April 16, 2025. [...]
