In 1995, the Municipal Council of C. delivers a building permit for four chalets in a building area. The very next day, the plot is declared as being outside the building area following the confirmation of the amendment of the communal zone planification.

Two years after, S. asks several times the Municipal Council, orally and in writing, if the latter is competent to decide to transform the building permit (1 chalet instead of 4) and to transfer it to him. The communal authority contacts the Cantonal Service of Land Planning, without however transferring the case file, and obtains no answer. After a plenary meeting debate, the Municipal Council concludes that the municipality has indeed the competence to deliver such modified building permit. It informs S. accordingly. Therefore, S. starts the procedure to buy the plot, submits the housing project to public inquiry and receives the building authorization in 1997. His house is built the same year.

After the cancellation of the sale contract of his property in 2013, S. requests from the Cantonal Commission of Constructions of the Valais canton (CCC) to decide upon the validity of his building authorization dating back from 1997. Based on the federal jurisprudence, the CCC ascertains that said permit is void due to the lack of jurisdiction of the municipality outside the building area and considering that S. had acted in bad faith (he should have realized that the municipality was lacking jurisdiction and, therefore, he should have considered its decision as invalid). Nevertheless, the CCC decides not to order the rehabilitation of the area (demolition). The appeal bodies (State Council and Cantonal Court) confirm said decision. The Federal Office of Territorial Development files an appeal before the Federal Court. Said appeal is partially admitted by the Court, which confirms the nullity of the municipal authorization but sends the case back to the State Council for it to examine if the conditions of a rehabilitation of the area (demolition) are fulfilled.

Concerning the first aspect of the decision, it should be highlighted that all Court levels considered that the applicant for the authorization could not benefit from the good faith protection principle by invoking having trusted the municipal authority. They estimated that it did not matter that S. approached the municipality several times to be sure that it was indeed competent regarding the building authorization, thus rendering it particularly attentive to this formal aspect. The Courts did not take into account the clear attitude of the municipality, which officially materialized into two meetings of the Municipal Council, first by a debate on its competence, then on the delivery of the building authorization. The land use change from the initial authorization to its subsequent modification appears to be the decisive element which has determined the cantonal authorities to deny the good faith of the applicant.

On the other side, the public interest (which falls under the constitutional order) to the observance of the principles of separation between the built-up areas and the unbuilt areas and the struggle against the urban sprawl have prevailed over the trust that a citizen may put into the local authority and into the democratic system and the rule of law of our country.

The Courts have rigidly applied the current jurisprudence relating to building authorizations. Such severe practice is certainly due to the frequent violations of the legal requirements and to their bad application by the authorities, which is recurrent. This situation cannot justify however that a private owner has to suffer the consequences of the failure of the authorities, which should be the ones to be sanctioned.

Since the fact of not questioning the attitude of a municipal authority in such circumstances is considered to be of bad faith, it will become impossible to trust such local authority and it will become necessary to always refer to the cantonal authority. On the other side, restoring the rule of law would imply to strongly reduce the autonomy of the local authorities, which are willing to keep the control over the management of the buildings on their entire territory.



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