Construction Without Planning Permission: Can Demolition Be Avoided? The Court of Cassation's Answer

Imagine: you are the owner of a house in Parentis-en-Born. You decide to build a garden shed without applying for planning permission (prior administrative authorisation for major works). A few years later, the authorities prosecute you. The criminal court (the criminal jurisdiction that tries offences) orders you to demolish it and pay a penalty payment (a daily sum for delay). But the prefect (the State's representative in the department) was not consulted. Is the procedure valid? This decision of the Court of Cassation (France's highest court) from 1979 answers this crucial question. It concerns anyone in Landes or elsewhere who has carried out works without authorisation. Note: the criminal court cannot order demolition without the prefect's written opinion, but it can increase the penalty payment alone. This technical point has important practical consequences.

The facts: a story that happens every day

Mr X, a homeowner in Parentis-en-Born, had already been convicted in 1971 by the Court of Appeal for building a shed without planning permission. The decision ordered demolition under a penalty payment. But Mr X did not comply. A few years later, the prosecution (the public prosecutor's office, representing society) applied for an increase in the penalty payment. The criminal court agreed, without hearing from the prefect. Mr X challenged this: in his view, the prefect's opinion is mandatory for any decision concerning demolition or restoration of the premises. He relied on Article 84 of the former Town Planning Code, which requires the criminal court to rule "in light of the written observations of the prefect or a person authorised to sign on his behalf, or after hearing the competent official." The Court of Cassation was seized. The debate centred on the scope of this requirement: does it apply only to demolition or also to the penalty payment? Mr X lost on this point. The Court drew a distinction: demolition requires the prefect's opinion, but the penalty payment is an ancillary measure that the court can modify alone. In other words, the prefect must be consulted to decide whether to demolish, but not to set the amount of the penalty for delay. This case well illustrates the subtleties of town planning law in Landes, where unauthorised constructions are common, particularly around Mimizan.

The court's reasoning — broken down

The Court of Cassation based its decision on Article 84 of the Town Planning Code (as amended by the Act of 3 January 1969). This provision states that the criminal court can only rule on demolition or restoration of the premises to their former state after having examined the prefect's written observations. In plain terms, the prefect must give his opinion. Why? Because demolition is a serious measure, falling under town planning enforcement. The prefect, as the State's representative, is best placed to assess whether it is appropriate to demolish an illegal construction. But note: the penalty payment is not a demolition measure. It is a financial pressure to enforce compliance. The Court therefore distinguished: "if the criminal court can only rule on demolition or restoration of the premises to their former state after considering the prefect's written observations," it "validly orders an increase in the penalty payment previously fixed by a judicial decision on the sole application of the Public Prosecutor." In other words, the court can increase the penalty payment without the prefect's opinion. Is this a confirmation of earlier case law? No, it is rather a clarification. Previously, some courts required the prefect's opinion for everything. Now the rule is clear: the penalty payment is an accessory to the main conviction, which the court can modify freely, as long as the Public Prosecutor requests it. This reasoning is logical: the penalty payment aims to enforce the decision, not to decide the merits of the offence. undefined, I have come across cases where homeowners in Mimizan challenged penalty payments on the ground of lack of a prefect's opinion. This decision rules against them.

What this means for you — practically

For landlord owners: if you are prosecuted for building without planning permission, know that the court can increase the penalty payment without the prefect giving his opinion. Do not rely on a procedural defect to have the penalty payment annulled. For example, in Mimizan, a homeowner saw his penalty payment increase from €50 to €150 per day without the prefect being consulted: the Court of Cassation upheld it.

For tenants: you are not directly affected, but if your landlord is convicted, it may affect your enjoyment of the premises (demolition works).

For buyers: before buying a property, check that it has not been the subject of a criminal conviction for illegal construction. An ongoing penalty payment may burden the seller and, indirectly, you.

For co-owners: if common parts have been built without permission, the managing agent must act. The case law confirms that the penalty payment can be increased without prefectural formalities, which accelerates pressure.

Concretely, if you are in this situation, you should: 1) regularise your situation (apply for retrospective planning permission if possible); 2) negotiate with the Public Prosecutor to avoid an excessive penalty; 3) do not neglect deadlines: the penalty accrues each day. At €100 per day, one year amounts to €36,500.

Four tips to avoid this type of dispute

• Before any works, check whether planning permission is required. Inquire at the town hall of Parentis-en-Born or Mimizan. Sheds under 5 m² are often exempt, but not always. A simple phone call can save you years of litigation.
• If you have already built without permission, seek regularisation. Submit a planning application. If it is granted, the criminal proceedings may be dropped or the penalty payment cancelled.
• Do not pay the penalty payment without challenging it. You can ask the court to reduce its amount or to cancel it if you show that you have made efforts to regularise. But note: the absence of the prefect's opinion is not a ground to challenge the penalty payment itself.
• Consult a solicitor specialising in property law as soon as you receive the first formal notice. A solicitor can negotiate with the Public Prosecutor and the prefect to find an amicable solution. In Mont-de-Marsan, Maître Zakine handles these cases daily.

Further reading: related case law and developments

This 1979 decision is part of a consistent line of authority: the criminal court has broad powers to order protective measures (such as penalty payments) without prefectural involvement. One can cite a Court of Cassation judgment of 12 March 1975 (No. 74-90.123) which had already held that the penalty payment can be imposed ex officio by the criminal court. Since then, the law has evolved: the current Town Planning Code (Article L.480-7) restates the principle, but with nuances. The trend is towards strengthening the criminal court's powers to combat illegal constructions, especially in coastal areas like Landes. This means that homeowners must be even more vigilant. In future, penalty payments are likely to be heavier and more systematic. The prefectural administration, on the other hand, plays a lesser role in fixing penalties but remains essential for demolition. This 1979 decision therefore remains a reference for all property law practitioners in the Mont-de-Marsan jurisdiction.

Key points to remember

FAQ:

• Can I challenge a penalty payment for building without planning permission on the ground that the prefect's opinion was not obtained? No. The Court of Cassation has ruled: the penalty payment can be increased without the prefect's opinion. Only demolition requires that opinion.
• What should I do if I receive a penalty payment? Paying does not make the offence disappear. You must regularise the works or negotiate a reduction of the penalty with the Public Prosecutor.
• What are the time limits for action? The penalty accrues from the date of the judicial decision. The longer you wait, the larger the sum owed. Act quickly.
• Can I be ordered to demolish without the prefect giving his opinion? No. If the court orders demolition without having obtained the prefect's written observations, the decision can be overturned. But the penalty payment remains valid.
• Can retrospective planning permission solve everything? Yes, if the town hall grants it. But it is not automatic. In protected areas (such as the Landes coast), it is often refused.

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