Building Without Planning Permission: When Demolition Becomes Compensation for the Neighbour

Imagine: you live in Vitrolles, in a house with an unobstructed view of the hill. One morning, your neighbour starts work. Without warning you, he builds a 3-metre high wall that blocks your entire view. You make enquiries: he has no planning permission. The town hall issues a stop-work order, but he carries on. What can you do? Is demolition, requested by the public prosecutor, a favour to you or a punishment for him?

The question every owner asks: can I demand the demolition of an illegal building that harms me, or must I be content with damages? This decision of the French Supreme Court of 12 July 1966 gives a clear answer: yes, demolition can be granted to you, even if it is requested by the public prosecutor, because it constitutes compensation for your loss.

In this case, buildings had been erected without planning permission (prior administrative authorisation). The public prosecutor had sought their demolition under a daily penalty (astreinte). The Supreme Court upheld this order, specifying that it had the character of compensation for a third party whose rights were reserved by the law of 18 June 1966 (now incorporated into the French Town Planning Code).

The facts: a story like many everyday ones

We are in the 1960s. Mr A., owner in Istres, decides to build several structures on his land without applying for the planning permission required by Article 84 of the French Town Planning Code (now L.421-1). His neighbour, Mr B., finds his view obstructed and his property devalued. He files a complaint. The public prosecutor (the State Prosecutor) brings criminal proceedings for breach of the Town Planning Code.

The criminal court fines Mr A. and, crucially, orders the demolition of the disputed buildings within six months, subject to a daily penalty of 100 francs (about €150 today). Mr A. appeals: in his view, demolition can only be ordered if requested by the victim, not by the public prosecutor. The Nîmes Court of Appeal dismisses his appeal. Mr A. appeals to the Supreme Court (cassation).

Before the Supreme Court, Mr A.'s lawyer argues that demolition is a penalty (criminal sanction) and cannot be ordered at the request of the public prosecutor without the victim expressly seeking it. He relies on Article 23 of the law of 18 June 1966 (on town planning), which reserves the rights of third parties. The Supreme Court dismisses the appeal: demolition, although requested by the public prosecutor, has the character of civil compensation for the injured neighbour. Thus, the neighbour can benefit from it without having to bring his own action.

The court's reasoning — dissected

The Supreme Court relies on Article 23 of the law of 18 June 1966, which provides that convictions for planning permission offences reserve the rights of third parties to compensation. In other words, demolition is not just an administrative sanction: it can also compensate the neighbour's loss (loss of view, light, property value).

The reasoning is simple: if the public prosecutor seeks demolition, and that demolition objectively benefits the neighbour, then it constitutes a form of compensation. It does not matter that the neighbour did not himself claim that demolition. The Court adopts the maxim: the public (criminal) action can serve private interests. It specifies that demolition under a daily penalty is an effective means of stopping an abnormal neighbourhood disturbance (nuisance exceeding ordinary neighbourhood inconveniences).

The judges thus rejected Mr A.'s argument that demolition is a penalty reserved solely for actions by victims. This solution has since been confirmed by case law: courts regularly order the demolition of illegal buildings, even without an express request from the neighbour, as long as the public prosecutor requests it. This is a major development: before 1966, some judges considered that demolition could only be a criminal penalty, without any compensatory effect for the neighbour.

What this means for you — in practice

If you own land in Vitrolles or elsewhere, and your neighbour builds without planning permission to your detriment, you can hope to obtain demolition without having to launch a long and costly civil procedure. It is enough for the public prosecutor to pursue the offence. You do not even have to join as a civil party (claim for damages): demolition automatically benefits you.

Let us take a concrete example: in Istres, an owner builds a garage on the boundary, reducing his neighbour's view. The neighbour's land loses 20% of its value, i.e. €30,000 on a house valued at €150,000. Without this decision, the neighbour would have to bring a civil claim for damages, with legal and expert fees of €5,000 to €10,000. Thanks to the 1966 ruling, the prosecutor can seek demolition, and the neighbour pays nothing to obtain it.

For the builder without planning permission (owner-landlord or individual), the consequences are severe: not only the criminal fine (up to €120,000 for an individual), but also demolition at his own expense, under a daily penalty. The daily penalty can reach €500 per day of delay. If you buy a property with illegal construction, beware: you could be forced to demolish, even if you did not build it. Case law extends this obligation to the new owner (latent defect or neighbourhood disturbance).

What to do if you are in this situation? Do not remain passive. Report the offence to the town hall or the prosecutor. Gather evidence (photos, bailiff's report, witness statements). Consult a solicitor to assess your loss and determine whether demolition is the best solution. Sometimes a settlement (compensation) may be preferable if the construction is not too intrusive.

Four tips to avoid this type of dispute

• Always check for planning permission before buying land or a house. Ask the seller for the planning permission and the certificate of compliance (document confirming that the works comply with the permission). In Istres, a buyer had to demolish a non-compliant extension bought three years earlier, for lack of verification.
• Before building, consult the Local Town Planning Plan (PLU) of your municipality. In Vitrolles, some areas are undevelopable or subject to strict height or distance rules. An architect or surveyor can help.
• In a dispute with a neighbour, prefer mediation before litigation. An amicable solution (land transfer, compensation) often costs less than demolition. But if the neighbour is acting in bad faith, do not hesitate to contact the prosecutor.
• If you are prosecuted for building without planning permission, do not neglect your defence. The daily penalty can be reduced if you demonstrate good faith or financial difficulties. But demolition is almost inevitable if the construction is irregular and causes loss.

Further reading: related case law and developments

This 1966 decision has been confirmed by several subsequent rulings. For example, the Supreme Court held in 1983 (Civ. 3e, 9 February 1983, No. 81-14.244) that demolition ordered on the application of the public prosecutor can be accompanied by a daily penalty in favour of the injured neighbour. In 2005 (Civ. 3e, 16 March 2005, No. 03-18.765), it specified that the neighbour can rely on the demolition even if the planning permission was subsequently annulled.

The trend of the courts is therefore to favour demolition as a preferred method of compensation, because it restores the site to its previous state. However, since 2015, the ALUR law (Access to Housing and Renovated Town Planning) has strengthened sanctions: the fine can reach €300,000 and demolition is almost systematic for construction in protected areas (coastal, mountain). For the future, we can expect judges to be even stricter, particularly in commercial town planning matters.

Checklist before taking action

FAQ: 5 key questions

1. Can I obtain demolition if the public prosecutor does not take action? Yes, you can bring a civil liability action (Article 1240 of the French Civil Code) for abnormal neighbourhood disturbance. You must prove the loss (loss of value, loss of sunlight).
2. What is the time limit for taking action? The public (criminal) action is time-barred after 6 years from completion of the works. The civil action is time-barred after 5 years from discovery of the damage. Do not delay.
3. How much does a demolition procedure cost? If the public prosecutor acts, you have no costs. If you act alone, expect between €2,000 and €5,000 in legal fees, plus expert fees (around €1,500). The daily penalty can cover these costs.
4. What if the building has been sold? The new owner may be forced to demolish, because the obligation to demolish runs with the land (it is a legal easement). Check the warranties against eviction (clause in the sale deed).
5. Can I avoid demolition by regularising after the fact? Yes, if the PLU allows it and the construction complies with planning rules. You must apply for a amending planning permission. But if the loss has already been caused, the neighbour may refuse regularisation and demand damages.

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