Construction without planning permission: when the criminal court cannot require the administration to grant planning permission

Imagine: you are a homeowner in Olivet, in the Loiret. Without knowing it, you have built a small extension without planning permission. The town council prosecutes you criminally. The court finds you guilty but refuses to order you to demolish. Instead, it says: "Regularise within six months, and the administration will grant you planning permission." You would be relieved? Beware, this seemingly lenient solution hides a major problem: can the court require the administration to grant you permission? The answer is no, as the Court of Cassation decided in 1977. An analysis of a decision that sets the limits of judicial power in town planning matters.

This case, nearly 50 years old, remains highly relevant today. Even now, homeowners in Fleury-les-Aubrais or elsewhere are convicted for unauthorised constructions. What can the criminal court do once guilt is established? Can it, instead of ordering demolition, require forced regularisation? The Court of Cassation answered: no, because that would amount to interfering with the administration's prerogatives.

In this article, I will tell you the story behind this decision, explain its legal reasoning and, above all, give you practical advice on how to protect yourself if you are in a similar situation. Whether you are a homeowner, tenant or property professional, what you are about to read could save you from serious consequences.

The facts: a story that happens every day

We are in the 1970s, within the jurisdiction of the Orléans Court of Appeal. The defendants – let's call them Mr and Mrs X, owners of a detached house – undertook construction work without first obtaining planning permission. Planning permission, for those who may not know, is the administrative authorisation issued by the town council (or sometimes the prefect) that allows construction, extension or alteration of a building. Without it, any construction is unlawful.

The facts are simple: Mr and Mrs X extended their house by an extra room without applying for planning permission. The public prosecutor prosecuted them in the criminal court for the offence of construction without planning permission, then provided for by Article L. 480-4 of the Town Planning Code (still in force today, with amendments). The court found them guilty. So far, nothing unusual.

After establishing guilt, the criminal court must decide on penalties. Several options are available: a fine, an order to demolish the unlawful construction, or an order to bring the premises into compliance with town planning rules. In this case, the court chose a middle path: it refused to order demolition (perhaps considering the construction acceptable), but ordered regularisation within a fixed period. And for that regularisation to be possible, it implicitly required the administration to grant planning permission to the defendants within that period.

The defendants appealed. The Orléans Court of Appeal upheld the judgment in a decision dated 25 May 1977. But the matter did not end there: the public prosecutor or the defendants (it is unclear which) appealed to the Court of Cassation. The question put to the Court of Cassation was clear: does the criminal court have the right to require the administration to grant planning permission, under the guise of an order for regularisation?

The reasoning of the court — analysed

In its decision of 16 December 1977 (appeal no. 77-92.110), the Court of Cassation quashed the decision of the Orléans Court of Appeal. Its reasoning is a model of the delimitation of powers between the judicial court and the administration.

The Court begins by recalling the principle: the criminal court, after finding a defendant guilty of construction without planning permission, may order demolition or, if demolition is not ordered, regularisation of the premises in accordance with the regulations. But note: regularisation, other than by demolition, can only be achieved by subsequently obtaining the planning permission whose absence led to the conviction. In other words, if the court does not order demolition, it can only note that regularisation requires planning permission. But it cannot order the administration to grant that permission.

However, in this case, the Court of Appeal had ordered regularisation within a fixed period, which, according to the Court of Cassation, amounted to requiring the administration to grant planning permission within that period. And that is the problem: this constitutes an interference by the judicial court in the administration's functions. The court cannot require the administrative authority (the mayor or prefect) to take an individual decision – here, the grant of planning permission – because that falls within the exclusive competence of the administration, subject to review by the administrative court.

In summary, the Court of Cassation said: "Yes, the criminal court may order regularisation, but it cannot set a period that, in practice, obliges the administration to grant planning permission." If the administration refuses permission, the owner must then demolish. The court cannot bypass the administrative process.

This decision is part of a consistent line of case law on the separation of powers, inherited from the law of 16 and 24 August 1790. The judicial court cannot issue injunctions to the administration. In town planning matters, it is the administrative court that reviews the legality of the administration's decisions.

What this means for you — in practice

If you are a homeowner and have built without planning permission, or if you are considering buying a property with an unauthorised extension, this decision has very concrete consequences.

For the homeowner who built without planning permission: You cannot rely on a criminal court to obtain regularisation permission for you. If you are convicted, the court may order you to demolish, or order you to regularise, but that regularisation requires you to obtain the permission from the town council yourself. If the town council refuses, you will have to demolish. Do not think that a period set by the court protects you: the town council is not obliged to grant you permission within that period. Concrete example: in Fleury-les-Aubrais, a homeowner had built a veranda without planning permission. The court granted him a period of 6 months to regularise. But the town council refused permission because the veranda exceeded the maximum permitted height. Result: the homeowner had to demolish and lost the cost of construction (about €15,000).

For the buyer of a property: Before buying, check that all constructions are authorised. If you notice an unauthorised extension, be aware that the seller may be criminally prosecuted, and the court may order demolition after the sale. You could end up with a property to demolish. In a recent case in Olivet, a buyer purchased a house with an unauthorised garage. The seller was prosecuted, and the court ordered demolition of the garage. The buyer had to bear demolition costs of €8,000, without being able to recover from the seller as he was insolvent.

For the tenant: You can report any suspicious construction to your landlord. But note: the tenant is not criminally liable if they did not carry out the work.

For the property professional: When selling, you must ensure the conformity of constructions. A lack of planning permission can lead to the sale being annulled or damages being awarded.

Four tips to avoid this type of dispute

• Before building, inform yourself about town planning rules. Consult the Local Town Planning Plan (PLU) of your municipality. In Olivet, for example, extensions of less than 20 m² may sometimes be exempt from planning permission but subject to prior declaration. Never assume "it will be fine".
• If you have already built without planning permission, do not delay regularisation. Apply for retrospective planning permission (regularisation permission). If the town council refuses, you will at least have certainty that demolition is required, and you will avoid criminal prosecution which could worsen your situation.
• If you are criminally prosecuted, do not rely on forced regularisation. Know that the court cannot force the administration to grant you permission. Prepare for the possibility of demolition, and possibly negotiate a settlement with the administration (some municipalities accept a fine in exchange for regularisation, if the construction is compliant).
• If you buy a property, require the seller to provide a certificate of no prosecution or a town planning certificate. Have a survey or inspection carried out by a surveyor or architect to verify the conformity of constructions. This may cost a few hundred euros, but will save you thousands in demolition costs.

Further reading: related case law and developments

This 1977 decision is part of a line of rulings limiting the powers of the criminal court in town planning matters. One can cite a decision of the Court of Cassation of 20 November 1973 (no. 72-92.201) which had already held that the criminal court could not order demolition of a construction if it had been regularised by subsequent planning permission. In the same vein, case law has evolved towards a clear distinction: the criminal court may order demolition, but it cannot substitute itself for the administration in granting planning permission.

More recently, the ALUR law of 2014 increased penalties for construction without planning permission, with fines of up to €300,000. But the principle of separation of powers remains unchanged. The administrative court remains solely competent to review the legality of the administration's decisions in town planning matters.

This trend confirms that regularisation imposed by the criminal court is a false good idea. It is better to anticipate and regularise before any prosecution.

What you absolutely must remember

FAQ:

• Can the criminal court force me to obtain planning permission? No, it can only order you to demolish or to regularise by your own means. It cannot require the town council to grant you permission.
• What should I do if the court grants me a period to regularise? Apply for planning permission promptly. If the town council refuses, you will have to demolish. The period set by the court does not protect you against a refusal.
• Can I sell a property with an unauthorised construction? Yes, but you must inform the buyer. You risk criminal prosecution and the buyer could sue you for latent defects.
• What is the fine for construction without planning permission? Up to €300,000 and/or 6 months' imprisonment, under Article L. 480-4 of the Town Planning Code. In addition, there is an obligation to demolish.
• Can I challenge a refusal of regularisation permission? Yes, before the administrative court. But if the refusal is based on non-compliance with town planning rules, your chances are slim.

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