Inadmissibility of the appeal against a cantonal referral judgment in building permit matters, for lack of a final decision within the meaning of art. 93 FSCA

Facts

On 22 June 2017, the Cantonal Construction Commission of the canton of Valais granted the Commune of Vex a building permit for a school complex comprising a gymnasium and a separate building with shops and nine apartments over six levels, and dismissed the objection lodged by [A.] .

On 7 November 2018, the Council of State of the canton of Valais dismissed the opponent's appeal.

By judgment of 23 April 2019 (A1 18 259), the Public Law Division of the Valais Cantonal Court partially upheld [A.] 's appeal, set aside the Council of State's decision as regards him, and remitted the matter for further investigation and a new decision in accordance with consid. 3.5.4. It also specified that the permit must, where applicable, provide that the ventilation installations of the school complex be fitted with a noise-damping system of 2000 mm.

[A.] , represented by a lawyer, files a subsidiary constitutional appeal with the Federal Supreme Court and requests the annulment of the cantonal judgment and of the building permit of 22 June 2017, or alternatively the remittal of the matter to the cantonal court. No exchange of written submissions was ordered.

Main question: does the cantonal referral decision, which definitively rules on the compliance of the project with the noise protection and parking requirements but leaves the Council of State a margin of appraisal, constitute a final decision open to immediate appeal to the Federal Supreme Court?

Considerations

The subsidiary constitutional appeal is inadmissible, since the decision was rendered as the final cantonal instance in public construction law and may be the subject of a public law appeal under arts. 82 ff. FSCA (art. 113 FSCA).

The Federal Supreme Court recalls that the public law appeal is open against final decisions (art. 90 FSCA), partial decisions (art. 91 FSCA), preliminary and interlocutory decisions concerning jurisdiction or recusal (art. 92 FSCA), as well as other interlocutory decisions if they cause irreparable harm (art. 93 para. 1 let. a FSCA) or if the admission of the appeal may immediately lead to a final decision avoiding lengthy and costly evidentiary proceedings (art. 93 para. 1 let. b FSCA).

The cantonal judgment constitutes a referral decision which definitively settles certain aspects of the dispute (compliance of the project with the rules on noise and parking). Such decisions are in principle interlocutory and not immediately contestable, unless they fall within arts. 92 or 93 FSCA. They are regarded as final only if the referral concerns solely the execution by the lower authority, without any notable freedom of appraisal (ATF 140 V 282 consid. 4.2).

In the present case, the Council of State must require the commune to submit an application for a derogation from the distances between buildings, obtain the opinions of the commission and of the appellant, and then assess the expediency of the derogation by weighing all interests; it may also have to examine new plans and a new public notice procedure. The authority therefore has a margin of…