Expert lawyer in quarry exploitation law

Are you considering opening or managing a quarry to extract essential natural resources? Are you wondering about the legal steps to ensure your project complies with environmental and territorial regulations? Our lawyers specialized in quarry exploitation law are by your side to support you at every stage of your project.

This field, at the crossroads of environmental law, administrative law, and business law, requires expertise that our team is proud to put at your service. Whether it is obtaining a prefectural authorization, negotiating with stakeholders, or resolving disputes related to this activity, we offer comprehensive legal assistance.

Understanding the subtleties of the fortage contract with our lawyers specialized in quarry exploitation law

The quarry lease contract, cornerstone of private quarry exploitation, deserves special attention regarding its legal qualification. It is an agreement by which the owner of a quarry grants an operator (the quarryman) the right to extract materials, in exchange for a royalty, while retaining ownership of the land and subsoil. The right to operate a quarry thus derives from the ownership right of the land and subsoil.

In accordance with Article 552 of the Civil Code, "ownership of the land includes ownership of what is above and below." The owner enjoys the use of the subsoil and may exploit it or entrust its exploitation. However, an exception applies to mining substances defined in Article L.111-1 of the Mining Code. In this case, the owner does not have the right of use, which belongs exclusively to the State, the only authority empowered to grant mining concessions.

Case law has gradually characterized the fortage contract as a sales contract, particularly when the exclusive purpose of the contract is the transfer of the extraction right. The underlying legal reasoning is that one cannot lease what is consumed by use, namely the very substance of the quarry (Cass. 3e civ., October 25, 1983).
Thus, the right to extract and dispose of extracted materials gives the contract a property-transferring nature, bringing it closer to a sale. Initially, case law referred to sale of future goods by anticipation (Com. May 10, 1965; Civ. 3E, May 30, 1969). Defined in Article 1601-3 of the Civil Code, this concept means that ownership of future works is transferred to the buyer as they are executed.

This distinction between relations between the parties (sale of movable property, Cass. 8 juill. 1997, n°95-17.681) and relations with third parties (sale of immovable property, Cass. civ., 28 November 1949) further complicates the analysis. Towards third parties, the assignment of the right to operate is considered a sale of immovable property, as it involves a partial alienation and a reduction in the value of the land.

The Court of Cassation (ruling of March 8, 1957) specified that the assignment of the right to extract materials, in return for a royalty, constitutes, between the parties, a sale of materials considered in their future state as movable property, i.e., a sale of movable property by anticipation. In certain cases, particularly when the exploitation right is accompanied by the rental of adjacent buildings or land, the qualification of a lease may be retained.

This oscillation between the classification as movable property by anticipation and that of a lease highlights the importance of precise contractual drafting, as judges may reclassify an improperly named contract by the parties. It is also necessary to distinguish between drilling carried out on private property and that carried out on public property.

The administrative judge refused to classify a fortage contract executed on public property as a public works contract (Court of Appeal of Versailles, February 23, 2017). On the other hand, the Council of State had previously ruled that a fortage contract on municipal land constituted an administrative contract that should be assimilated to a public works contract (CE, June 3, 2009).

Our specialist lawyers in quarry exploitation law have in-depth expertise in analyzing and drafting fortage contracts, taking into account jurisprudential developments. We advise you on the most appropriate legal qualification for your project and assist you in negotiating and drafting contractual clauses.

Anticipating the end of the fortage contract with our lawyers specialized in quarry exploitation law

The issue of renewing the fortage contract is essential for quarry operators. Unlike certain commercial leases that grant a right to renewal, case law has established that the owner of a quarry is entitled to oppose the renewal of a fortage contract upon its expiration.

This contractual freedom of the owner is however framed by procedural obligations and, in certain cases, by an obligation to compensate the operator. The owner must imperatively notify their intention to the operator by registered letter with acknowledgment of receipt, at least one year before the contract expiration date, unless otherwise stipulated in the contract.

This formal notification is a sine qua non condition for the refusal of renewal to be valid. The absence of such a regular opposition from the lessor cannot under any circumstances lead to the tacit or automatic renewal of the fortage contract (Cass. civ. 3e, February 14, 2007). It is therefore necessary for operators to carefully monitor contractual deadlines and anticipate any decisions by the owner.

De même, pour le propriétaire, le respect de ce formalisme est essentiel pour prévenir toute contestation ultérieure. Cependant, la liberté du propriétaire de ne pas renouveler le contrat est tempérée par le principe d’indemnisation de l’exploitant dans certaines circonstances. Si le carrier s’est conformé aux clauses du contrat et a, par ses travaux ou ses investissements, apporté une plus-value au terrain, il a droit à une indemnité due par le propriétaire lorsque celui-ci choisit de poursuivre l’exploitation lui-même ou de céder son droit à un tiers.
Cette indemnisation vise à compenser l’enrichissement sans cause du propriétaire et à protéger l’exploitant qui a investi dans la valorisation du site.

The assessment of this compensation depends on various factors, such as:

• the importance of the investments made;
• the duration of the operation;
• the state of the site at the end of the contract;

Our lawyers specialized in quarry exploitation law advise and assist you in negotiating and drafting clauses related to renewal and compensation in fortage contracts. Our team helps you anticipate risks and defend your interests, whether you are a landlord-owner or operator.

What are the essential formalities for operating a quarry?

The operation of a quarry is subject to a set of administrative formalities and environmental requirements. Obtaining prior prefectural authorization is a sine qua non condition for legally carrying out this activity, and any change of operator is also subject to the approval of the prefect. In addition, obligations concern the royalty due to the owner and the protection of the environment.

The fee due by the operator: a calculation proportional to the tonnage extracted

Article L.333-7 of the Mining Code establishes the principle that the holder of an exclusive quarry permit is required to pay the surface owner, independently of the occupancy indemnity, a royalty based on the tonnage extracted. This legal provision has been the subject of significant case law interpretation regarding the method of calculating this royalty.

Article L. 333-7 of the Mining Code excludes any fixed determination of the quarry royalty, explicitly providing that it must vary proportionally to the tonnage extracted. The method of calculating the royalty is therefore indexed to the quantity of materials extracted, which excludes any form of flat rate that would not reflect the actual activity of the operation. This provision ensures a balance between the interests of the owner and the operator.

Environmental requirements: impact study and site restoration

The legislator places great importance on environmental considerations in the context of quarry operations. The operator is notably required to carry out an impact study proportionate to the environmental sensitivity of the area concerned (Article R.122-5 of the Environmental Code).

This study must include:

• an analysis of the initial state of the area and environments likely to be affected by the project;
• an analysis of the negative and positive effects induced by the project;
• an analysis of the cumulative effects of the project with other known projects.

Case law also recognizes the site owner's right to bring a liability action against the operating company in the event of pollution caused by industrial waste for which the latter is responsible. At the end of the work, site restoration is a major obligation. The operator must consult the owner and the prefect in order to jointly determine the method of restoration, in accordance with Article R.512-39-2 of the Environmental Code.

Our specialist quarry exploitation lawyers assist you with all these mandatory procedures. We support you in applying for prefectural authorization, carrying out the impact study and implementing restoration measures. Our experts in environmental and renewable energy law advise you on applicable ICPE regulations and defend you in the event of litigation.