Construction Without a Permit: Demolition Ordered Even If the Administration Does Not Respond

Imagine: you are the owner of a plot of land in Cabestany, you decide to build a garage on it without applying for a planning permit. Months go by, no one says anything. You think it is fine, that the administration has let it be. Then one day, you receive a summons to the criminal court for an offence under the Town Planning Code. The judge orders demolition. You have submitted an application for regularisation, but the administration never replied. Does this silence constitute tacit consent?

This is exactly the question put to the Court of Cassation in the case of 21 February 1989. The owner had built without a permit, was sentenced to a fine of 500 francs suspended and to demolition. He contested, arguing that the administration had not responded to his regularisation application, which in his view constituted tacit authorisation. The Court of Cassation rejected this argument: the silence of the administration does not create a tacit permit if the construction was already illegal. Furthermore, the hearing of the competent official, even without oath, is valid if it does not infringe the rights of the defence.

This decision, although dating from 1989, remains relevant today. It reminds us that town planning law is mandatory: building without authorisation exposes you to demolition, regardless of the administration's procrastination. For owners in Prades, Cabestany or elsewhere, it is vital to know these rules before starting work.

The facts: a story like those that happen every day

Mr X, owner in Cabestany, decides to erect a building on his land without first obtaining a planning permit. Work begins, and quickly the local administration discovers the offence. Mr X is prosecuted before the criminal court for building without a permit, in breach of Articles L. 421-1 et seq. of the Town Planning Code (which require a permit for any new building).

At first instance, the court sentences him to a fine of 500 francs suspended and orders the demolition of the building. Mr X appeals. Before the Court of Appeal, he attempts to defend himself by arguing that after the work started, he submitted an application for regularisation. The administration having not replied within the legal time limit, he considers that a tacit permit was granted to him. He also argues that the official who gave his opinion on the measures to bring the building into compliance (demolition, reallocation of the land) was heard under oath, which would be irregular under Article L. 480-5 of the Town Planning Code (which provides for a simple hearing without oath).

The Court of Appeal rejects his arguments: it considers that the silence of the administration does not constitute tacit authorisation for an already illegal construction, and that the hearing under oath of the official, although irregular, did not harm the interests of the defendant. Mr X then appeals to the Court of Cassation.

The reasoning of the court — analysed

The Court of Cassation, in its judgment of 21 February 1989, upholds the decision of the Court of Appeal. It relies on two main grounds.

First, it reminds that Article L. 480-5 of the Town Planning Code (which allows the criminal judge to order demolition or compliance) requires that the competent official (often a town planning inspector) be heard, but without oath. In this case, the official was heard under oath. This irregularity is indeed a procedural error. But the Court specifies that it does not automatically lead to the annulment of the decision: the defendant must still demonstrate that this irregularity harmed his interests (for example, that the oath influenced the judge). However, Mr X did not establish nor even allege such prejudice. Therefore the judgment remains valid.

Second, the Court dismisses the argument of tacit permit. The Town Planning Code does provide that the silence of the administration for a certain period constitutes tacit consent for a permit application. But this rule does not apply when it is a matter of regularising a building already erected in breach of the law. In other words, one cannot build first, then apply for a permit afterwards, and hope that the silence of the administration covers the initial illegality. The building remains illegal and can be demolished.

Thus, the Court confirms that the criminal judge can order demolition even if the administration has not responded to an application for regularisation. This is a consistent position of case law: the tacit permit does not apply to buildings completed before the application.

What this means for you — in practice

If you are an owner and you have built without a permit, or if you have exceeded the rights granted by an initial permit, this decision concerns you directly. It means that you cannot rely on the silence of the administration to regularise your situation retrospectively. If you are prosecuted, the judge can order the demolition of your building, even if you have submitted an application for regularisation that has gone unanswered.

Let us take a concrete example in Prades. You have extended your house by 40 m² without a permit. The town planning department sends you a report. You urgently submit a planning permit application for regularisation. The administration does not reply for two months. You think you are safe? No. If the court is seised, it can order the demolition of the extension, and you will have to bear the costs (expect between €8,000 and €15,000 for a simple demolition, not including the restoration of the land).

For tenants, be vigilant: if you rent a property that includes illegal constructions (conservatory, garage), you could be involved in proceedings if the owner is prosecuted. But generally, it is the owner who is criminally liable.

Finally, for property professionals (developers, agents), this decision reminds us of the importance of checking the conformity of constructions before any transaction. A property with an unauthorised extension can lose 20 to 30% of its value and be unsaleable until the situation is regularised.

Four tips to avoid this type of dispute

• Never build without a permit. Even for a small garden shed, check whether a permit is required (floor area, height, zone). In Cabestany as elsewhere, the rules are strict.
• If you have already built illegally, consult a lawyer before submitting an application for regularisation. A professional can assess your chances and prepare a solid file. Do not rely on the silence of the administration.
• In case of prosecution, do not neglect the procedure. The hearing of the official under oath can be challenged, but you must demonstrate concrete prejudice. A lawyer will know how to identify irregularities.
• Before buying a property, have a town planning diagnosis carried out. Check that all existing constructions comply with the latest permit. A notary can help, but a specialist lawyer can go further.

Further reading: related case law and developments

This decision is part of a consistent line of case law from the Court of Cassation. We can cite a judgment of 12 January 1994 (No. 92-84.321) which reminds that the tacit permit cannot regularise a building erected before its grant, even if the application was submitted before the completion of the works. The trend is clear: the criminal judge severely punishes constructions without authorisation, and the silence of the administration is never an excuse.

More recently, the criminal chamber specified in a judgment of 18 September 2018 (No. 17-83.456) that the absence of a response to an application for a regularisation permit does not prevent criminal proceedings. The illegal construction remains a continuing offence, meaning it can be prosecuted at any time, without prescription as long as the construction exists.

For the future, the courts are increasingly attentive to environmental protection and the fight against land artificialisation. Demolition orders are often accompanied by penalty payments (sum due per day of delay) to force the owner to execute the decision. In Cabestany, an owner had to pay €50 per day of delay for six months before demolishing an unauthorised shed.

In practice: what to do

Checklist if you are prosecuted for building without a permit:

1. Do not ignore the summons. Absence from court will not protect you; the decision will be given by default.
2. Consult a lawyer specialising in town planning law. They can verify the regularity of the procedure (hearing of the official, compliance with the limitation period for criminal proceedings, which is 6 years for continuing offences).
3. Gather all documents: permit application submitted, acknowledgement of receipt, correspondence with the administration, photos of the works, any evidence showing that you attempted to regularise.
4. Assess the options: plead good faith, demonstrate that the construction complies with the local town planning plan (PLU), or negotiate a dispensation from demolition if restoration is possible (for example, reduction in height).
5. Prepare a budget for possible demolition. Better to anticipate than to suffer a penalty payment.

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. Make an appointment →