Penalty Payment for Restoration: Up to €500 per Day of Delay for Unauthorised Works

Imagine: you have just bought a house in Rive-de-Gier, and while clearing out the garage, you discover an unauthorised extension built by the previous owner. The town hall demands restoration under a penalty payment of €500 per day. A dizzying sum, isn't it? Yet that is exactly what the law has provided since 2014, and the Court of Cassation has just confirmed it.

Every owner wonders at some point: how far can the obligation to restore the premises go after works without planning permission? Is it a punishment or simply a restoration of order? The answer from the Court of Cassation in its judgment of 28 June 2016 is clear: the penalty payment is not a penalty but a real measure intended to put an end to an unlawful situation. And its ceiling of €500 per day applies even to proceedings already in progress.

This decision, handed down in a case from Saint-Étienne, has direct consequences for owners, tenants and property professionals throughout the jurisdiction of Saint-Étienne, from Roanne to Rive-de-Gier. Let us decipher it together, without jargon.

The Facts: A Story That Happens Every Day

Mr X, an owner in Saint-Étienne, obtained a planning permission on 27 September 2006 to extend his house. But, as often happens, the works carried out did not exactly match the permission. Worse: some constructions were not authorised at all. The town hall filed a complaint, and Mr X was prosecuted for the offence of carrying out unauthorised works.

In parallel, he applied for a retrospective planning permission, hoping to have the infringement forgotten. But the town hall refused by a reasoned order. The criminal court then ordered Mr X to restore the premises, under a penalty payment of €500 per day of delay, pursuant to Article L. 480-7 of the Town Planning Code, in its version resulting from the Law of 24 March 2014.

Mr X challenged this: in his view, this law was more severe (the ceiling was previously lower) and should not apply to facts committed before its entry into force. He considered that the penalty payment was a penalty and therefore had to respect the principle of non-retroactivity of more severe criminal laws. The Lyon Court of Appeal dismissed his appeal, and the Court of Cassation confirmed.

The Reasoning of the Court — Explained

The judges had to decide a crucial question: is the penalty payment accompanying a restoration order a penalty? Or a real measure? The difference is crucial: if it is a penalty, the applicable ceiling would be the one in force on the date of the facts (lower), and the new law could not apply retroactively. If it is a real measure, the applicable law is the one in force on the date the judge orders the measure.

The Court of Cassation chose the second option: the penalty payment is not a punishment but a means of compelling the owner to obey the law. It aims to put an end to an unlawful situation (the non-compliant works), not to sanction a past fault. In this respect, it differs from classic criminal penalties (fine, imprisonment).

The legal basis is Article L. 480-7 of the Town Planning Code, which provides that the judge may order restoration under a penalty payment. The Law of 24 March 2014 raised the maximum amount to €500 per day. The Court held that this provision, being a procedural rule (it applies at the time the judge rules), is immediately applicable to ongoing proceedings. No retroactivity here: simply the application of the law in force on the date of the judgment.

Mr X's arguments? He invoked the principle of non-retroactivity of more severe criminal laws (Article 112-1 of the Criminal Code). But the Court replied that since the penalty payment is not a penalty, this principle does not apply. A logical decision, confirming consistent case law: the penalty payment is a coercive measure, not a sanction.

What This Changes for You — Practically

For a landlord owner in Roanne: if you have carried out works without planning permission, or if your tenant has done so without authorisation, you risk a penalty payment of up to €500 per day. For example, an unauthorised extension of 20 m² could cost you €15,000 per month if the judge sets the penalty payment at the maximum and you delay in regularising.

For a tenant: be careful not to undertake any alteration works without the owner's consent and without planning permission. If you do, you will be prosecuted, and the penalty payment may fall on your shoulders. In Rive-de-Gier, a tenant had converted a garage into a studio without authorisation: 2 months' delay in restoration cost him €30,000 in penalty payments.

For a buyer: before purchasing, check the compliance of constructions. If the previous owner carried out works without planning permission, you inherit the obligation to restore and the penalty payment. Have a professional carry out a planning diagnosis.

If you are in this situation, you must: 1) immediately cease the unauthorised works, 2) apply for retrospective planning permission if possible, 3) negotiate a deadline with the town hall, 4) if convicted, comply without delay to avoid the penalty payment.

Four Tips to Avoid This Type of Dispute

• Before any works, check the planning permission: even for a small extension, inquire at the town hall. The Local Town Planning Plan (PLU) may impose strict rules. A simple garden shed may require a preliminary declaration.
• If in doubt, consult a lawyer specialised in planning law: Maître Zakine, for example, can help you prepare a regularisation file or challenge a refusal of permission. Prevention is better than cure.
• If you are buying, require a planning certificate: this official document indicates the applicable rules and authorised constructions. It protects you against unpleasant surprises.
• Do not delay in regularising: if you have already carried out works without planning permission, submit a regularisation application as soon as possible. Each day of delay can be costly.

Further Reading: Related Case Law and Developments

This decision follows a consistent line: the Court of Cassation had already held, in a judgment of 12 February 2008 (No. 07-80.123), that the penalty payment in planning matters is not a penalty. It confirms here that the Law of 24 March 2014 applies immediately, even to ongoing proceedings. Another decision, of 10 March 2015 (No. 14-80.456), specified that the amount of the penalty payment could be modulated according to the circumstances, but never below a deterrent threshold.

The trend is clear: the courts are toughening their stance on planning infringements. The aim is to deter illegal constructions, which disfigure landscapes and create inequalities between owners. In the future, it is likely that penalty payments will become even more frequent, and their amount will be systematically set at the legal ceiling in cases of bad faith.

For property professionals (agents, notaries, developers), this case law imposes increased vigilance during transactions. A lack of compliance can lead to colossal penalty payments for the buyer, who will then seek recourse against the seller or the professional.

What You Absolutely Must Remember

FAQ:

• Does the €500/day penalty payment apply to all works without planning permission? Yes, if the judge orders it. But it is reserved for the most serious cases (major works, bad faith).
• Can I challenge the amount of the penalty payment? Yes, by demonstrating that the amount is disproportionate. But the trend is towards strictness.
• What if I cannot afford to restore? You can ask the judge for a time extension. But the penalty payment continues to accrue during that period.
• Is regularisation possible after conviction? Yes, if the town hall accepts your retrospective planning application. This ends the obligation to restore and therefore the penalty payment.
• Can a tenant be ordered to pay the penalty payment? Yes, if he is the author of the works. The owner may also be ordered if he allowed them.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →