Construction without Planning Permission: Is the Mayor's Opinion Mandatory Before Demolition?

Have you built a shed, a garden shed or an extension without applying for planning permission? In Montdidier as elsewhere, many owners are unaware that even a simple shed may require authorisation. But beware: even in the event of an infringement, the procedure is not a smooth path for the administration. The Court of Cassation has laid down a simple but often overlooked rule: before ordering demolition, the criminal court must necessarily hear the mayor or the competent official. Without this opinion, the conviction may be annulled. A protection for the owner, but also a procedural obligation not to be neglected.

In this case, an owner built a shed in November 1990 without planning permission. He applied for permission on 10 January 1991, but it was refused on 29 May 1991. Prosecuted for an offence under the Town Planning Code, he was fined 10,000 francs and ordered to demolish the structure. But the Court of Cassation quashed the judgment: the lower courts had not, before ruling on the demolition, obtained the opinion of the mayor or the competent official, as required by Article L. 480-5 of the Town Planning Code. An omission that benefited the owner.

This decision, handed down in 1994, remains a reference. It reminds us that judges cannot decide alone on compliance or demolition: the opinion of the local authority is essential. For an owner in Roye or elsewhere, this is a chance to present arguments before a demolition is ordered. Explanations.

The Facts: A Story Like Many Others

Imagine an owner in Montdidier, let's call him Mr Lefèvre. In November 1990, he decides to build a shed on his land to store agricultural equipment. He thinks a simple shelter does not require planning permission – a common mistake. In reality, any new construction, even a modest one, is subject to authorisation if its floor area exceeds a certain threshold (at the time, 20 m²). Mr Lefèvre does not file any application. It is only on 10 January 1991, after being informed by a neighbour, that he files a planning application. But the Montdidier town hall refuses the permit on 29 May 1991, on the grounds that the shed is too close to the boundary and harms the appearance of the neighbourhood.

Meanwhile, the administration draws up a report of the offence. The public prosecutor prosecutes Mr Lefèvre before the criminal court for building without planning permission. At the hearing, the owner explains that he has regularised his situation by filing an application, but the court fines him 10,000 francs (approximately €1,500) and orders the demolition of the shed. Mr Lefèvre appeals. The Court of Appeal upholds the conviction and the demolition. But the appeal judges did not, before ruling on the demolition, seek the opinion of the mayor of Montdidier or the competent official (for example, the departmental director of equipment).

Mr Lefèvre appeals to the Court of Cassation. He alleges violation of Article L. 480-5 of the Town Planning Code, which requires the criminal court to obtain written observations or hear the mayor or the competent official before ruling on demolition. The Court of Cassation rules in his favour: the appeal judgment is quashed, because it does not appear from any of its findings that the opinion was requested. The procedure is tainted with irregularity.

The Reasoning of the Court — Analysed

Article L. 480-5 of the Town Planning Code (in the version then in force) provides that, when an offence is established, the criminal court may, upon request of the public prosecutor or of its own motion, order the restoration of the site, the demolition of the structure or the reinstatement of the site to its former state. But this decision can only be taken after hearing the mayor or the competent official, or after receiving their written observations. This requirement is considered essential (i.e., substantive, a condition for the validity of the decision) and its non-observance harms the interests of the person prosecuted.

Why such a requirement? Because the mayor or the competent official (often the town planning department of the local authority or the departmental directorate of territories) knows the land, the local planning rules, and can inform the judge on the appropriateness of demolition. For example, if the construction complies with the local town planning scheme (PLU) but was simply built without permission, the mayor might recommend regularisation rather than demolition. Conversely, if the structure is dangerous or significantly harms the environment, he will recommend demolition.

In this case, the Court of Appeal had sentenced Mr Lefèvre to demolition without having obtained the opinion of the mayor of Montdidier. The judges of the Court of Cassation noted that "this requirement is essential and its non-observance is likely to harm the interests of the person prosecuted". In other words, the owner's right to benefit from a decision informed by the local administration was violated. The cassation is therefore pronounced, and the case is referred to another Court of Appeal, which will this time have to follow the procedure.

This is a landmark decision: it reminds us that demolition measures are not automatic, even in the case of a proven offence. The judge must have technical and local advice before taking such a radical measure.

What This Means for You — Practically

If you are an owner and have built without planning permission (or with a refused permit), this decision provides you with important procedural protection. The judge cannot order the demolition of your structure without having consulted the town hall or the town planning department. This means that you can, during your trial, request that the opinion be obtained, and possibly argue for regularisation (if your project complies with the PLU) rather than destruction.

Let's take a concrete example: you are an owner in Roye and you have built a 25 m² conservatory without planning permission. The court prosecutes you. You can argue that the conservatory complies with the PLU (height, setback, appearance) and that the town hall, if consulted, might give a favourable opinion for regularisation. In that case, the judge could order compliance measures (for example, filing a regularisation application) rather than demolition. Without this opinion, the judge might be tempted to order demolition, a simpler solution for him.

For tenants or purchasers, be vigilant: if you rent or buy a property with an unauthorised construction, you could be exposed to a demolition action. But this decision allows you, if you are prosecuted, to demand that the mayor's opinion be obtained. This can give you leverage to negotiate regularisation.

Example in figures: in Montdidier, a demolition can cost between €5,000 and €15,000 depending on the size of the structure. If you manage to obtain regularisation, the costs of the permit and architect are much lower (a few hundred to a few thousand euros). The financial stakes are therefore considerable.

Four Tips to Avoid This Type of Dispute

• Before building, find out about the necessary authorisations. A simple shed, a fence, a garden shed may require planning permission or prior notification. Consult the town planning department of your local authority (in Montdidier or Roye) or an architect. A 30-minute check can save you years of proceedings.
• If you have already built without permission, do not delay regularising. File a retrospective planning application. Even if the construction is illegal, the administration may agree to regularise if the structure complies with planning rules. The sooner you act, the less you risk criminal prosecution.
• In the event of prosecution, insist on compliance with the procedure. If you are summoned before the criminal court, ask your lawyer to verify that the opinion of the mayor or competent official has been obtained. If not, you can invoke the nullity of the proceedings or request an adjournment to allow for this opinion.
• Keep all documents relating to your construction. Plans, photos, estimates, correspondence with the town hall. These elements can be used to demonstrate that the structure complies or that you have attempted to regularise. In the event of a trial, they strengthen your case.

Further Analysis: Related Case Law and Developments

The decision of 12 October 1994 is not isolated. The Court of Cassation has repeatedly affirmed the essential nature of the prior opinion of the mayor before any demolition measure (e.g., Cass. crim., 24 October 1995, No. 94-84.320). Since then, the wording of Article L. 480-5 has been amended, but the obligation remains: the judge must obtain the opinion of the competent authority before ruling on demolition or compliance measures. In practice, criminal courts have become more attentive to this requirement, especially since the European Court of Human Rights has strengthened the rights of the defence regarding proportionality of penalties.

A recent trend: judges are more hesitant to order demolition when the structure is old or the owner acted in good faith. The mayor's opinion then becomes crucial: if he considers that the construction poses no planning problem, the judge may be content with a fine or compliance measures. Conversely, if the opinion is unfavourable, demolition is almost certain.

For the future, we can expect judges to be even stricter on compliance with this procedure, under the influence of the right to a fair trial (Article 6 of the European Convention on Human Rights).

Frequently Asked Questions

Can I regularise a construction built without permission after being prosecuted?
Yes, as long as the judge has not ordered demolition. You can file a regularisation application. The administration may accept it if the structure complies with the PLU. If the application is refused, you risk demolition.

What if the mayor refuses to give his opinion?
The judge may then use other means: hearing the competent official (DDT, for example) or relying on the documents in the file. However, the absence of an opinion can be invoked as a procedural defect.

What are the time limits for acting after an illegal construction?
The criminal prosecution is time-barred after 6 years from the construction. The civil action (demolition requested by a neighbour) is time-barred after 30 years. It is better to regularise quickly.

How much does a procedure for building without permission cost?
Lawyer's fees vary: expect between €1,500 and €5,000 for a defence before the criminal court. The fine can go up to €120,000 (current maximum). Demolition is at your expense.

Can I challenge a demolition order if the mayor's opinion was not obtained?
Yes, that is the very basis of this decision. You can appeal or file an appeal in cassation alleging violation of Article L. 480-5 of the Town Planning Code.

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 →