Construction without Planning Permission: When the Administration Interrupts the Criminal Limitation Period

Imagine the scene: you have just bought a house in Chamalières, with a nice garden. A few months later, your neighbour starts building work without permission. You file a complaint. But the facts date back several years. Is the matter time-barred? Not necessarily. A decision of the French Supreme Court of 14 May 2008 (n° 07-87.776) recalls a key mechanism: a request for an opinion sent by the public prosecutor to the departmental directorate of equipment (DDE) interrupts the limitation period for criminal proceedings for the offence of building without planning permission.

In concrete terms, this means that the mere fact that the prosecutor requests a technical opinion from the State services is enough to 'reset' the limitation clock, which is generally three years for planning offences. This is a boon for local authorities and neighbours who encounter unauthorised buildings that are several years old.

But be careful: this interruption is not automatic; it must be invoked and proved. So how exactly does it work? And what should you do if you are affected, in Riom or elsewhere? An analysis of a decision that delights planning authorities… and is a nightmare for builders without planning permission.

The facts: a story like many that happen every day

Mr X, a property owner in Chamalières, undertook construction work in 2001 and 2002 without first obtaining planning permission. On 15 November 2006, a planning permission was granted retrospectively, but in the meantime, the planning authorities had noted the offence and drawn up a report. The public prosecutor then initiated criminal proceedings for 'building without planning permission' before the criminal court.

At first instance, Mr X was sentenced to a fine of 1,000 euros suspended. But he appealed, arguing that the criminal proceedings were time-barred: according to him, the facts dated back to 2001-2002, and more than three years had elapsed before the prosecution. The Riom Court of Appeal, hearing the case, had to decide a crucial procedural question: did the request for an opinion sent by the public prosecutor's office to the departmental directorate of equipment (DDE) to obtain its technical observations, pursuant to Article L. 480-5 of the French Town Planning Code, interrupt the limitation period?

The trial judges upheld the conviction, holding that this request for an opinion had indeed interrupted the limitation period. Mr X then appealed to the Supreme Court, arguing that the offence of building without planning permission is distinct from that of non-compliance with planning permission, and that the DDE's opinion could not interrupt the limitation period for facts that were already old. The Supreme Court, in its judgment of 14 May 2008, dismissed the appeal and upheld the reasoning of the Court of Appeal.

The reasoning of the court — analysed

To understand this decision, we must first refer to Article L. 480-5 of the French Town Planning Code. This provision provides that, before criminally prosecuting a planning offence, the public prosecutor may request the opinion of the DDE. This opinion is technical: it enables the authorities to know whether the work complies with planning rules, whether it can be regularised, etc. But the question was whether this simple request interrupts the limitation period for criminal proceedings (the period after which prosecution is no longer possible).

The Supreme Court answers in the affirmative. It recalls that the limitation period for criminal proceedings for building without planning permission is three years (Article 8 of the French Code of Criminal Procedure). But any act of prosecution, such as a direct summons, an indictment, or even a request for an opinion, interrupts this period. The DDE's opinion is considered an act of procedure necessary for the investigation, and therefore interrupts the limitation period.

In this case, the judges found that the request for an opinion was made before the expiry of the three-year period from the discovery of the work (in 2001-2002). The limitation period was therefore interrupted, and a new three-year period began to run from that request. Result: the proceedings initiated in 2006 were perfectly valid. The Court rejects Mr X's argument that the offences were distinct: it does not matter; it is the same offence of building without planning permission, and the interruption applies.

This solution is not a jurisprudential revolution, but a confirmation. It is part of a trend favourable to the effectiveness of prosecutions in planning matters, where offences are often discovered late. Here, the judges favour a broad interpretation of interrupting acts, to prevent illegal constructions from escaping any sanction simply by the passage of time.

What this changes for you — in practice

Are you a property owner in Riom and did you build without planning permission four years ago? Do not think you are in the clear. If the public prosecutor's office requested the DDE's opinion before the expiry of the three-year period, the limitation period was interrupted. You can therefore be prosecuted even several years after the work. Conversely, if you are the victim of an illegal construction in your neighbourhood, you have an interest in reporting the facts quickly to the prosecutor, because each procedural act (hearing, request for an opinion) pushes back the deadline.

Let's take a concrete example: in Chamalières, a property owner builds an extension without planning permission in January 2020. In February 2022, the public prosecutor's office requests an opinion from the DDE. The limitation period (which would have expired in January 2023) is interrupted, and a new three-year period runs from February 2022. The owner can therefore be prosecuted until February 2025. If he had waited without doing anything, the prosecution would have been time-barred in January 2023.

For buyers, this is a warning signal: before purchasing a property, check the dates of the work and the absence of ongoing criminal proceedings. A simple request for an opinion can revive a limitation period that appears to have already expired. Finally, for local authorities, this decision confirms the importance of cooperating with the public prosecutor's office: a technical opinion requested in time can save a prosecution.

Four tips to avoid this type of dispute

• Obtain planning permission before any work: even for a small extension or a garage, check with your local town hall. Building without planning permission exposes you to a criminal fine (up to €300,000) and demolition. In Riom, the town hall provides free advice.
• If you have already built without planning permission, regularise as soon as possible: submit a retrospective planning application. If the application is refused, you risk prosecution, but at least you will have interrupted the limitation period by your own action? No, the planning application does not interrupt the limitation period, but it can demonstrate your good faith.
• Report offences quickly: if you see suspicious work at your neighbour's, write to the mayor or the prosecutor. A quick report triggers a procedure that interrupts the limitation period. Do not wait for years, because the three-year period runs from the date of the work.
• Keep all administrative documents: DDE opinions, letters from the public prosecutor's office, receipts for planning applications. In the event of a dispute over the limitation period, these documents make it possible to prove which acts were carried out and on what date. A simple email can be sufficient.

Further analysis: related case law and developments

This decision is part of a consistent line of authority from the Criminal Division of the French Supreme Court. In a judgment of 28 March 2006 (n° 05-85.637), it had already held that a request for an opinion addressed to the DDE interrupts the limitation period. The 2008 decision therefore merely confirms a previous solution, but with more detailed reasoning, responding to the arguments of builders.

However, there is a divergence with the civil courts: in matters of limitation of civil actions (to obtain damages), a simple request for an opinion does not interrupt the period. A more formal act of prosecution, such as a writ, is required. This difference is important to know: even if the criminal action is saved by an opinion, the civil action may be time-barred if you have not acted in time.

In the future, we can expect judges to continue to interpret interrupting acts broadly, with a view to protecting town planning. Public prosecutor's offices are increasingly vigilant about illegal constructions, especially in high-pressure areas like Puy-de-Dôme. The limitation period remains a common defence, but this case law reduces its scope.

Summary and next steps

FAQ — Questions you may be asking:

• Q: Is the limitation period automatically interrupted by any request for an opinion? A: Yes, as long as the opinion is requested by the public prosecutor's office in the context of the investigation, before the expiry of the limitation period.
• Q: Can I be prosecuted for work done 5 years ago if the prosecutor requested an opinion 2 years ago? A: Yes, because the request interrupted the limitation period. A new 3-year period began to run from that request.
• Q: What should I do if I receive a summons for old work? A: Immediately consult a lawyer specialising in property law. Check the limitation dates and the interrupting acts. Do not admit the facts without advice.
• Q: Does this rule also apply to breaches of the local town planning plan? A: Yes, Article L. 480-5 concerns all breaches of planning rules, including non-compliance with planning permission.
• Q: Can I challenge the DDE's decision if its opinion interrupted the limitation period? A: No, the opinion itself is not challengeable; it is a preparatory act. Only the conviction decision can be appealed.

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