Driven by the health crisis and changing consumer habits, “quick commerce” —that is, the extremely fast delivery of online orders—has grown significantly in France’s major cities.
This model requires the establishment of spaces dedicated to storage and order fulfillment in the heart of densely populated neighborhoods. These warehouses, known as “dark stores,” have been set up primarily in the places of former downtown stores that did not survive the pandemic.
While drive-through pickup locations—defined in Article L. 752-1, 7° of the Commercial Code as “permanent locations where customers can pick up retail purchases ordered electronically”— are subject to a commercial operating permit, “dark stores,” which do not serve customers, areexempt from this requirement.¹
However, under penalty of sanctions, the opening of dark stores must comply withurban planning regulations.²
The construction of a new building intended to house such awarehouse³ or the conversion of an existing store into a dark store—which constitutes a change of use within the meaning ofArticle R. 421-17 of theUrban Planning Code⁴, is subject to a building permit if it involves a modification of thebuilding’s load-bearing structures or facade⁵ or, failing that, to aprior declaration⁶.
Local governments and public intermunicipal cooperation bodies (EPCI) may also include in their urban planning documents (local urban development plan (PLU), intermunicipal local urban development plans (PLUi), and territorial coherence plans (SCoT)) provisions designed to regulate the establishment of dark stores within their jurisdictions:
- The regulations of a local urban development plan may, in particular , “specify land use based on the primary uses to which the land may be put or the nature of the activities that may be carried out there” and “define, depending on local circumstances, the rules concerning the purpose and nature of authorizedstructures”7. It may also “identify and delineate neighborhoods, blocks, and streets where commercial diversity is preserved or developed, particularly through retail and neighborhood stores, and define, where appropriate, requirements designed to ensure this objective ” and “delimit, in urban or developable areas, sectors in which the preservation or development of infrastructure and logistics facilities is necessary and define, where appropriate, the nature of these facilities as well as the requirements necessary to ensure this objective”⁸.
- In the absence of a SCoT, the land-use and planning guidelines (OAP) of PLUi must now include “guidelines regarding commercial, artisanal, and logistics facilities”and specify “the conditions for establishing commercial, artisanal, and logistics facilities that, due to their size, are likely to have a significant impact on land use planning and sustainabledevelopment”9.
- Since the enactment of LawNo. 2021-1104 of August 22, 2021, on combating climate change and strengthening resilience to its effects, SCoTs must include a “document on planning for small-scale, commercial, and logistics facilities that sets forth the conditions for the establishment of commercial facilities which, due to their size, are likely to have a significant impact on land use planning, downtown commerce, andsustainable development”10. This document sets forth “the conditions for the establishment of commercial and commercial logistics facilities based on their floor area, their impact on land development, and their impact on territorial balance, particularly with regard to the development of local commerce, the frequency of purchases, or the flows generated by people orgoods”11.
Obtaining the necessary planning permits therefore requires a preliminary analysis of local regulations.
In addition, the conduct of this business is subject to compliance with applicable European, national, or local rules regarding competition, food product regulations, commercial leases, the digital economy, labor law, outdoor advertising, intellectual property, and so on.
all areas of practice with which we are very familiar here at BMH AVOCATS.
Catherine Nelken, Laurence Duriez
1 Constitutional Council, August 13, 2021, DecisionNo. 2021-825 DC
2 Article L. 480-4 of the Urban Planning Code
3 Article R. 421-1 of the Urban Planning Code
4 UnderArticle R. 151-28 of the Urban Planning Code, retail stores fall under the “commerce and service activities ” land use category, while warehouses—defined as “buildings intended for the storage of goods or for logistics” by Article 4 of the decree of November 10, 2016, fall under the category “Other activities in the secondary or tertiary sectors.”
5 Article R. 421-14(c) of the Urban Planning Code
6 Article R. 421-17(b) of the Urban Planning Code
7 Article L. 151-9 of the Urban Planning Code
8 Article L. 151-16 of the Urban Planning Code
9 Article L. 151-6 of the Urban Planning Code
10 Article L. 141-6 of the Urban Planning Code, first paragraph
11 Article L. 141-6 of the Urban Planning Code, second paragraph