Although the idea behind this abolition in terms of urban densification policies and reducing city spread is clear, it remains uncertain whether such abolition constitutes a veritable revolution in terms of town planning law and whether it will indeed free up substantial plots of constructible land in urban areas.
The abolition of the COS was well covered in the media, which to a certain extent obscured the significant redrafting of article L. 123-1-5 of the Code de l’urbanisme that governs the drafting of the Plan Local d’Urbanisme (local planning regulations – PLU). Thus, beyond the simple abolition of the COS, it is actually the drafting manual for urban planning documents that has been revised, highlighting the significance of the reform.
Be warned though: the abolition of the COS does not mean that real estate constructions are now devoid of rules. The density of constructions remains governed by the other PLU rules, i.e. rules on bulk envelope, site coverage and construction location. Nonetheless, the desired effect, i.e. densification, will be much more easily attainable.
The sure intention of those drafting the law was to quickly move positive law in favour of densification, with article 157 of the ALUR law immediately enforcing the abolition of COS, independently of all reviews of the PLU provisions. The text implicitly and necessarily specifies that the new provisions of article L. 123-1-5 of the Code de l’urbanisme are immediately applicable for planning permission applications filed as of the entry into force of the ALUR law. The constitutionality of this provision in relation to the free administration by territorial public authorities is questionable. Although such criticism has been implicitly dismissed by the Constitutional Council, nonetheless the authorities competent on delivering planning permissions will no longer be in a position to refuse such planning permission on the basis of ignorance of COS rules.
The abolition of COS in local planning regulations and its immediate application pose a number of questions. Beyond the limited constructability of a plot of land, the COS was a tool used in certain local planning regulations to control other objectives, such as plot division, constructability bonuses, harmony in the end-use of buildings, etc. Pending the adaptation of planning documents by local authorities to once more cover these objectives, below are some of the main questions raised by the recent changes:
- Will the “COS bonuses” continue to produce their effect? According to the memo issued by the Ministry for Housing and Territorial Equality on the ALUR law, and more specifically on the abolition of COS and of the minimum surface area of constructible plots, “the constructability bonuses respectively afforded by articles L. 123-11 for residential buildings, L. 127-1 for social housing buildings, and L. 128-1 for buildings meeting high energy performance criteria can no longer be based on the COS”.
Nevertheless, constructability bonuses do not seem to be completely abolished. Indeed, if the constructability bonus uses not the COS but the rules on the bulk envelope as its basis, for instance, the bonus could continue to apply. In which case, constructions could exceed, within the limits of the bonus, the simple application of rules relating to the bulk envelope of buildings as laid down by the town planning document. This seems to be the essence of the provisions of new article L.128-1 of the Code de l’urbanisme.
- The free distribution of constructability in parcelling also brings with it its lot of questions. Up until the ALUR law, developers were free, under certain conditions, to distribute constructability between the land plots created, thus applying the COS to the entire divided land unit.
This rule has now doubtless lost some of its attraction, with COS having disappeared and constructability rules now being only mainly dependent on bulk envelope and site coverage rules. However, the above-mentioned memo drafted by the Ministry for Housing and Territorial Equality on the ALUR law creates potential problems as regards the distribution of the maximum floor area authorised for a development, indicating that “as regards the floor area allocated to each plot, it shall be freely distributed by the developer on the development permit or upon sale or lease of the plots in question”.
Does this mean that a plot could exceed, in terms of bulk envelope for instance, the constructability applicable to a single plot (and thus exceed the authorised height, for instance) if another plot in the same development does not fully use the constructability permitted by the PLU (excl. COS rule)?
Such a solution, in our view, seems illogical, in particular as regards urban building consistency, but it would to a certain extent be in line with the logic behind the constructability bonus and bulk envelope rules.
- It was formerly possible to set a differentiated COS in the local planning regulations, according to the final use of the constructions in question. The COS was then used as a tool to manage the balance of building end usage. Does the abolition of the COS in urban planning documents mean that local authorities lose this tool permanently? It seems likely, although other management means do exist.
- Does the abolition of the COS also mean that the de facto COS has also disappeared? This would seem logical, but it raises the following issues:
- The provisions on de facto COS refer to the density and surface area of the constructions (and not to the actual COS). In such a case, the abolition of the COS would not stop the application of such a rule, nor would the notion of constructions exceeding the authorised density become obsolete.
- Conditions governing redevelopments of buildings that were deemed covered by a “de facto COS”. In the absence of recognition of a “de facto bulk envelope” to replace the “de facto COS”, all projects concerning this type of building will require some type of regularisation if, in terms of the bulk envelope in particular, they exceed the authorised constructability.
- The monitoring of changes in building end-use: certain PLUs, for instance that of the city of Paris, had put in place monitoring of changes in the end use of residential buildings and CINASPIC (constructions and facilities in the public interest and necessary to public services), via the application of the COS rule. By abolishing the COS, this monitoring method has also been removed. As regards residential properties, article L. 631-7 of the French Construction and Housing Code becomes the new method for monitoring their changes in end-use – in those towns in which it is applicable.
It is highly likely that the local authorities that are competent in drafting urban planning documents will conduct the necessary adjustments to retain the control of these elements and overcome the potential difficulties arising from the abolition of the COS.
To this end, it would nonetheless be desirable that the reform be supported by regulatory acts and circulars that give a more consistent structure to the freedom and creativity that have come into being with this component of the ALUR law.
by counsel Nicolas Planchot (Real Estate Transactions & Financing) and Alexandre Gauthier (Public Law)