Inadmissibility of an appeal against a remittal decision in matters of permits to demolish and build

Facts

The appellants, two public limited companies co-owning several plots located in Fribourg (chemin de Richemond and avenue de Beauregard), filed on 10 July 2014 an application for a permit to demolish existing buildings and to build three apartment buildings and an underground car park. The project concerned in particular buildings listed as value B and C cultural assets, and was part of the Richemond detailed development plan, published for public inquiry on 20 September 2013, adopted by the Communal Council on 15 July 2014 and approved by the Cantonal Department on 6 October 2015.

The project attracted three objections, including that of the association Pro Fribourg (the respondent), which requested that certain buildings be preserved.

By decisions of 15 March 2018, the Prefect of the district of Sarine granted the permit and dismissed the objection. On appeal by Pro Fribourg, the Second Administrative Court of the Fribourg Cantonal Tribunal, by judgment of 19 December 2018, annulled these decisions and remitted the file to the prefect for supplementary investigation in accordance with the considerations.

The appellants lodged a public law appeal with the Federal Supreme Court, seeking annulment of the cantonal judgment, confirmation of the prefectural decisions and authorisation to demolish and build on the conditions set.

The main legal issue concerns the admissibility of an immediate appeal against a remittal decision that does not terminate the proceedings, and the possibility of incidentally reviewing the detailed development plan.

Considerations

The Federal Supreme Court recalls that the public law appeal is open against final decisions (art. 90 FSCA), partial decisions (art. 91 FSCA) and certain preliminary or incidental decisions (art. 92 and 93 FSCA). Incidental decisions notified separately are admissible only if they may 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 remittal decision leaving the lower authority full latitude of assessment on the points still outstanding (ATF 140 V 282 consid. 4.2). It therefore does not terminate the proceedings and does not constitute a partial decision within the meaning of art. 91 let. a FSCA, since the question of preliminary review of the development plan is not independent of the grievances still in dispute.

As regards the irreparable harm within the meaning of art. 93 para. 1 let. a FSCA, it is not established: the appellants may challenge the new prefectural decision before the cantonal court and then appeal to the Federal Supreme Court. The lengthening of the proceedings and the increase in costs do not constitute irreparable harm (ATF 144 III 475 consid. 1.2; 135 II 30 consid. 1.3.4).

With regard to the evidentiary proceedings within the meaning of art. 93 para. 1 let. b FSCA, the investigative measures envisaged (examination of the grievances relating to the listed buildings and weighing of interests) are not of…