Illegal Construction under the PLU: Restoration is Always Possible (Cass. crim., 6 February 2024)

Imagine: you own a small agricultural building in Saint-Priest that you rent to a craftsman. One day, you receive a letter from the town hall informing you that your tenant has transformed the shed into a dwelling without authorisation. The Local Urban Plan (PLU) prohibits this change of use. You wonder: can the judge order the restoration of the premises, or is the violation too "minor" to warrant demolition?

This is precisely the question that arose in a case decided by the Court of Cassation on 6 February 2024 (No. 23-81.748). An oyster farmer from Villeurbanne had obtained planning permission to extend his building, but took the opportunity to build an additional 80 m² and an unauthorised floor. The criminal court ordered demolition. The operator contested, arguing that the violation related to the use of the premises and not their construction, which, according to him, made restoration impossible.

The Court of Cassation ruled: regardless of whether the violation concerns the use of a building or its construction, restoration (demolition, compliance) is always possible when the provisions of the PLU are breached. A decision that reassures mayors and neighbours, but worries overly creative owners.

The Facts: A Story That Happens Every Day

In 2011, Mr. H., an oyster farmer in Villeurbanne, obtained planning permission to extend his professional building. The permission provided for a limited extension, compliant with the PLU. However, during the works, Mr. H. thought bigger: he added 80 m² of floor space and a full storey without applying to modify the permission. The difference from the initial permission was flagrant: it was no longer an extension, but a new building.

The Villeurbanne town hall, alerted by a neighbour, noted the violation and referred the matter to the public prosecutor. Mr. H. was prosecuted for violation of the PLU and construction without permission. Before the criminal court, he pleaded good faith and tried to regularise his situation by filing an application for a modified permission. But the town hall refused, considering that the construction was too significant and did not comply with planning rules.

The Lyon criminal court, and then the Court of Appeal, sentenced Mr. H. to a fine and ordered the demolition of the non-compliant part. Mr. H. appealed to the Court of Cassation. His main argument: the violation concerned the use of the building (he used it for his activity while the PLU only permitted agricultural use), and not its construction. According to him, restoration (demolition) could only be ordered for a construction violation, not for a use violation. The Court of Cassation dismissed his appeal, confirming the conviction and demolition.

The Reasoning of the Court — Analysed

The Court of Cassation relied on two provisions of the Urban Planning Code: Article L. 610-1 (which defines violations of PLUs) and Article L. 480-5 (which provides for restoration measures). These provisions, in their version applicable at the time, allowed the criminal judge to order the restoration of premises or structures in case of violation of PLUs.

Mr. H.'s argument was as follows: the offence of use (using a building for purposes not conforming to the PLU) is a so-called "use offence", which can only be punished by a fine, not by a real measure such as demolition. Only the offence of construction (building without permission or in violation of permission) would justify restoration.

The Court of Cassation dismissed this argument: Articles L. 610-1 and L. 480-5 do not distinguish between the offence of construction and the offence of use. As soon as the PLU is violated, regardless of the nature of the violation (construction, use, change of destination), the judge may order restoration. The only condition is that the measure be proportionate to the gravity of the violation. In this case, the construction of an additional 80 m² and an unauthorised storey was sufficiently serious to justify demolition.

This decision confirms consistent case law: restoration is a real measure, attached to the property, and not personal. It does not matter whether the violation is committed by the owner, tenant or occupant. The judge may order demolition even if the violation is "merely" non-conforming use. This is a powerful weapon for local authorities fighting illegal construction.

What This Changes for You — Concretely

If you are an owner in Saint-Priest or Villeurbanne, this decision directly concerns you. It means that any violation of the PLU, even related to the use of a building rather than its construction, may result in an obligation to demolish or restore to conformity. Concretely:

• For the landlord: if your tenant transforms a garage into a dwelling without authorisation (change of use prohibited by the PLU), you risk having to restore the premises at your own expense, even if you are not the author of the violation. The town hall can pursue you as the owner.
• For the purchaser: before buying a property, check its conformity with the PLU. A non-conforming construction (even if several years old) can be demolished by court order. Have an urban planning diagnosis carried out by a professional.
• For the co-owner: if a co-owner carries out works not conforming to the PLU in their private parts, the syndicate may be compelled to act, and the co-ownership could be ordered to restore the premises.

Example with figures: in Villeurbanne, an owner had to demolish an entire storey he had added without permission. Cost of demolition: €15,000. Cost of proceedings (lawyer, court costs): €5,000. Criminal fine: €10,000. Total: €30,000, not including loss of rental value. If you are in this situation, you should consult a specialised lawyer promptly to assess your chances of regularisation.

Four Tips to Avoid This Type of Dispute

• Consult the PLU before any project: before buying, renting or building, familiarise yourself with the planning rules of your municipality. The PLU is available at the town hall or online. Check the zone, heights, permitted uses.
• Obtain all necessary permissions: for any extension, raising of height or change of use, submit a planning application or a prior declaration. Never start works before obtaining authorisation.
• Use an architect or a design office: a professional will help you comply with the rules and submit a complete file. The savings made by using an "amateur" can prove costly in case of litigation.
• If you are a tenant, inform your landlord: before changing the use of the premises (e.g., converting a commercial unit into a dwelling), ask for the landlord's written consent and check conformity with the PLU. Failing that, you could be evicted and ordered to restore the premises.

Further Analysis: Relevant Case Law and Developments

This decision is part of a line of case law favourable to restoration measures. In a judgment of 10 October 2018 (No. 17-86.026), the Court of Cassation had already ruled that demolition could be ordered even if the violation was old and the builder had acted in good faith. More recently, in a judgment of 14 September 2022 (No. 21-83.124), it specified that restoration could concern interior renovation works not conforming to the PLU.

The trend is therefore clear: judges prioritise the protection of urban planning and the general interest over individual rights. Local authorities have an effective tool to enforce their PLUs. In the future, we can expect courts to order demolitions more frequently, even for "minor" use violations, as long as they are established.

Frequently Asked Questions

Can I regularise a non-conforming construction after the fact? Yes, if the town hall accepts your application for a modified permission or regularisation. But beware: if the violation is serious (non-compliance with height, footprint, or use rules), the town hall may refuse. In that case, demolition is inevitable.

What is the time limit to act after a violation? The public prosecution prescribes 6 years from the discovery of the violation. The civil action (for damages) prescribes 5 years from the date the damage appeared. However, restoration can be ordered even after this period, as it is considered a real measure and not a penalty.

What should I do if I receive a notice of violation? Immediately consult a lawyer specialised in urban planning law. You have a very short time to present your observations and possibly file an application for regularisation. Do not remain passive.

Can the tenant be ordered to restore the premises? Yes, if he is the author of the violation. But the owner remains jointly liable. In practice, the judge often orders both jointly and severally, and the owner must seek reimbursement from the tenant.

Is demolition always proportionate? No, the judge must assess proportionality. If the violation is minor (e.g., a fence of 2.10 m instead of 2 m), he may simply impose a fine. But in case of significant construction or serious violation of the PLU, demolition is common.

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