Construction Without Planning Permission: The Public Prosecutor Can Demand Demolition Even After Conviction

Imagine for a moment: you are a homeowner in Montbard, in the Yonne department. You have carried out extension works without applying for planning permission. The town hall notifies you, the public prosecutor prosecutes you, and the criminal court fines you. But the prosecutor does not stop there: he also demands the demolition of your construction. The judge hesitates, postpones his decision. The prosecutor appeals to the Court of Cassation. Who is right? The question every homeowner asks: can the public prosecutor demand the demolition of an illegal construction, even if the builder has already been criminally convicted? This 1981 decision of the Court of Cassation answers yes, and it reminds us that public planning order prevails over private interests. But what exactly does this change?

The facts: a story that happens every day

Mr. X, a homeowner in Chenôve, on the outskirts of Dijon, decides to erect a building without bothering about planning permission. He acts without authorisation, perhaps believing that his project will not disturb anyone. The Dijon public prosecutor initiates criminal proceedings. The criminal court finds him guilty of an offence under Article L. 421-1 of the Planning Code (construction without planning permission). It imposes a penalty on him, but the request for demolition, made by the prosecutor, remains pending: the court of appeal stays its ruling on this point, arguing that an administrative appeal is ongoing (a non-contentious or contentious appeal against the refusal of planning permission). The prosecutor disagrees: he lodges an appeal in cassation against the appeal court's decision. The Court of Cassation must decide: can the prosecutor challenge a decision which, after a criminal conviction, postpones the question of demolition?

The reasoning of the court — dissected

The Court of Cassation relies on Articles L. 480-4 and L. 480-5 of the Planning Code, which govern criminal penalties and reinstatement measures in the event of a planning offence. Article L. 480-5 provides that the court may order the demolition of the irregular structure, even in the absence of a request from the public prosecutor. Here, the prosecutor had indeed requested demolition. However, the court of appeal had stayed its ruling, on the pretext that an administrative appeal was pending. The Court of Cassation quashes the decision: it rules that the criminal court cannot refrain from ruling on the demolition request once guilt has been established. In other words, once the builder is found guilty, the judge must necessarily rule on demolition, unless he specifically gives reasons for a refusal. The fact that an administrative appeal is pending does not constitute a legal exception. Note, however: the decision does not say that demolition must be automatically ordered; it says that the judge cannot postpone the question indefinitely. What few people know is that this case law has remained constant since 1981: it has been confirmed by subsequent decisions. undefined, I have come across cases where homeowners hoped to gain time by multiplying appeals, but the Court of Cassation ensures that the public prosecution is not paralysed.

What this changes for you — concretely

For a landlord-owner in Dijon: if you have built without planning permission, do not rely on an administrative appeal to delay demolition. The public prosecutor can demand immediate reinstatement. For a purchaser: always check that existing buildings have planning permission. If you buy a property with unauthorised works, you could inherit an obligation to demolish. Example: in Chenôve, an unauthorised extension of 30 m² can lead to a fine of €1,200 per m² (Article L. 480-4), i.e. €36,000, plus demolition (cost: €10,000 to €20,000). For a co-owner: if a neighbour has built without planning permission, you can report it to the public prosecutor, who can demand demolition without waiting for the end of the appeals. If you are in this situation, you must promptly challenge any decision to stay the ruling. Time limits: the appeal in cassation must be lodged within 10 days of the appeal court's decision (Article 568 of the Code of Criminal Procedure).

Four tips to avoid this type of dispute

• Before building, obtain planning permission: even for a garden shed or a conservatory, check with the town hall. The thresholds are strict (e.g. floor area > 20 m² requires planning permission).
• If you are prosecuted, do not obstruct: cooperate with the planning authorities. Proposing regularisation may avoid demolition.
• If convicted, do not rely on administrative appeals to gain time: the criminal court can order immediate demolition, independently of the appeals.
• Consult a lawyer as soon as you receive the offence report: time limits are short, and a defence strategy can limit the damage (negotiation of a reduced fine, proposal of regularisation).

Further reading: related case law and developments

This 1981 decision is part of a consistent line: the Court of Cassation has always ensured that the criminal court does not divest itself of the question of reinstatement. A later decision, Cass. crim., 15 March 1994, No. 92-85.700, confirmed that a stay of ruling on demolition is only possible if regularisation is ongoing and serious. The trend is therefore towards strict application: the judge must rule. In 2021, a law strengthened the mayor's powers to order demolition, but the public prosecutor remains a key player. What this means for the future: expect public prosecutors to be more vigilant, especially in high-demand areas like Côte-d'Or. Courts no longer tolerate unauthorised constructions.

In practice: what to do

• If you own a building without planning permission: do not delay in consulting a lawyer. You could be ordered to demolish, even if you have an administrative appeal.
• If you are the victim of an illegal construction by your neighbour: report it to the public prosecutor. The prosecutor can demand demolition without waiting.
• If you are in proceedings: do not rely on a stay of ruling. Prepare solid arguments to justify maintaining the building (e.g. ongoing regularisation).
• Check your insurance: some policies cover demolition costs if you are ordered to demolish.

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