Standing to appeal of an association in building permit matters: association that also pursues the defense of its members' interests, exclusion of art. 145 para. 3 LCI (Geneva)

Facts

By decision of 22 March 2019, the Department of Territory of the Republic and Canton of Geneva granted [P. SA] a building permit for a group housing development of nine dwellings at 5, chemin de la Boule, on parcels nos. 11'680 and 10'637 of the Commune of Confignon, owned by [R.Q.] and [Q.Q.] .

Several neighbours ([C.B.] et al.) appealed against this decision to the Tribunal administratif de première instance (TAPI), an appeal published in the Feuille d'avis officielle on 9 May 2019.

By submission of 25 May 2019, the appellant association requested to intervene alongside the neighbours. It criticised the massive character of the project in relation to the existing buildings, the southern slope being classified as a protected viticultural zone under the 2006 communal master plan.

By decision of 12 September 2019, the TAPI declared the request to intervene inadmissible. It held that the association was not directly affected (art. 60 let. b AniWA-GE) and could not rely on art. 60 let. e AniWA-GE and art. 145 para. 3 LCI, because its statutes were not devoted exclusively, out of pure idealism, to spatial planning or environmental protection, but also aimed at defending the interests of its members. It did not invoke a corporate appeal.

By judgment of 19 May 2020 (ATA/499/2020), the Administrative Chamber of the Court of Justice dismissed the association's appeal. It held that the TAPI's decision did not violate the right to be heard and confirmed that the association, which also defended the interests of its members, could not rely on art. 145 para. 3 LCI.

The appellant association requests the Federal Supreme Court, principally, to annul the cantonal judgment, declare its request to intervene admissible and recognise its status as a party; in the alternative, to remit the case. It requested suspensive effect, granted by presidential order of 24 September 2020. The Court of Justice refers the matter to the court's discretion, the building authority and [P. SA] as well as the owners request dismissal, and the neighbours refer the matter to the court's discretion.

Main question: could the association be recognised as having standing to intervene within the meaning of art. 147 LCI and art. 145 para. 3 LCI, when its statutes also pursue the defense of its members' interests, and does the cantonal judgment violate the right to be heard, the prohibition of arbitrariness, equal treatment or the guarantee of access to a court.

Considerations

On admissibility, the public law appeal (art. 82 et seq. FSCA) is open against a final cantonal judgment refusing standing to intervene at first instance in a public construction law matter. The appellant has a legitimate interest in having standing to intervene determined at the cantonal first-instance stage (art. 89 para. 1 FSCA). The appeal is therefore admissible.

On the right to be heard (art. 29 para. 2 Cst.), the Federal Supreme Court recalls that reasoning may be implicit and that it is not necessary to address every argument. The explanations of the Court of Justice, which enabled the appellant to contest the decision with full knowledge of the grounds, satisfy this requirement. Moreover, it examined the invoked judgment ATA/824/2014, so that any possible violation committed by the TAPI was remedied, the Court of Justice having full power of review. The complaint is dismissed.

On the merits, an appeal cannot be lodged for violation of cantonal law as such (art. 95 FSCA), but incorrect application of cantonal law may constitute a violation of federal law, in particular arbitrariness (art. 9 Cst.). Under art. 147 LCI and art. 60 AniWA-GE, standing to intervene presupposes standing to appeal; art. 145 para. 3 LCI reserves this to associations of cantonal importance or active for more than three years that are devoted out of pure idealism to the study of spatial planning, environmental protection, monuments, nature or sites. It is not disputed that the association does not meet the conditions for direct standing, nor for a corporate appeal, nor under art. 89 para. 2 let. d FSCA, for lack of national activity within the meaning of art. 12…