Construction Without Planning Permission: Administrative Appeal Does Not Stop Criminal Proceedings

Picture the scene: you own a lovely villa in Bollène, on the heights, with a view of Mont Ventoux. To gain an extra bedroom, you decide to extend the basement garage. You submit a planning application and obtain consent. But during the works, you realise the slope of the land allows for a second level. Without waiting, you build it, thinking you will regularise it later. Bad surprise: the town hall refuses your modified planning permission. You challenge this refusal before the administrative court. But in the meantime, the public prosecutor prosecutes you for building without permission. You think: "As long as my appeal is pending, the criminal courts will wait, won't they?" Well, no. That is precisely what the Court of Cassation ruled on 16 February 1994 (n° 93-82.129).

This decision, handed down thirty years ago, remains relevant. It establishes an unyielding rule: the existence of an appeal against a prefectural order refusing a modified planning permission has no effect on the exercise of criminal proceedings for building without permission. In other words, you cannot hide behind an administrative procedure to escape demolition. But what exactly does this change for you, as a property owner in Apt or elsewhere?

In this article, I will tell you the story of that property owner from Bollène (as the case concerns Vaucluse), dissect the judges' reasoning, and above all give you practical advice to avoid finding yourself in this situation. Because, believe me, in my practice I have come across cases where the owner genuinely believed his appeal protected him. He was wrong.

The Facts: A Story That Happens Every Day

Mr X is the owner of a villa in Bollène, Vaucluse. His house is built on steeply sloping land near a river. In 1988, he obtained planning permission to extend his villa. The submitted plans provided for a certain volume. But Mr X, seeing the land, has an idea: why not create a second basement level? He modifies the project without seeking authorisation. The works progress, the second level emerges. The town hall notices and refuses the necessary modified planning permission. Mr X challenges this refusal before the administrative court.

In the meantime, the public prosecutor is informed. He brings criminal proceedings for building without permission, based on Article L. 480-4 of the Town Planning Code (an offence punishable by a fine and, above all, an obligation to demolish). Mr X, confident of his rights, argues before the criminal court that the refusal of modified planning permission is unlawful. He explains that his administrative appeal is pending, and that as long as the administrative court has not ruled, the criminal court cannot convict him. The criminal court, and then the Court of Appeal of Nîmes, do not follow him. They fine him and order the demolition of the second level.

Mr X appeals to the Court of Cassation. He argues that the construction of the second level complied with the original planning permission plans, and that the refusal of modified planning permission is unlawful. According to him, this unlawfulness should bar any prosecution. The Court of Cassation dismisses his appeal. It states that the existence of an appeal against the refusal order has no effect on the criminal proceedings. In short, even if the refusal is later annulled, it changes nothing: the criminal court assesses the situation at the time of the facts. And at that time, Mr X had no permission for his second level.

The Reasoning of the Court — Dissected

In this judgment, the Court of Cassation recalls a fundamental principle of town planning law: planning permission is a prior condition. As long as you do not have valid permission, you cannot build. The fact of challenging a refusal is not a provisional authorisation. The High Court relies on Article L. 480-4 of the Town Planning Code, which punishes carrying out works without permission. It states that "the alleged unlawfulness, even if established, cannot substitute for the required authorisation". In other words, even if the refusal is unlawful, that does not give you the right to build without permission.

This reasoning is logical: planning permission is an individual decision that checks the project's compliance with planning rules. If you build without permission, you run the risk that the project is non-compliant. The appeal against the refusal is merely a challenge to the administrative decision; it does not create a right to build. The Court of Cassation here confirms settled case law. This is neither a development nor a reversal. It simply applies the principle of separation of powers: the criminal court is not bound by the outcome of the administrative appeal.

However, note: the decision does not say the refusal is lawful. It only says that the question of the lawfulness of the refusal has no bearing on the criminal prosecution. In practice, if the administrative court annuls the refusal, the modified planning permission will be deemed granted (subject to certain conditions). But that does not erase the offence committed in the meantime. The criminal court could nevertheless take this regularisation into account to reduce the penalty or forgo demolition, but it is not obliged to do so. In Mr X's case, the Court of Appeal ordered demolition, and the Court of Cassation upheld that decision.

What This Changes for You — Concretely

If you own a house in Apt or elsewhere, and you have built without permission or beyond the permission, know that the mere fact of challenging the refusal of regularisation does not protect you. Criminal proceedings can be brought immediately. And the consequences are severe: a fine of up to €120,000 (Article L. 480-4 of the Town Planning Code), an obligation to demolish under penalty, and even imprisonment in the event of a repeat offence. Not to mention the procedural costs and the inability to sell the property without regularisation.

Let's take a concrete example: in Apt, a landlord owner decides to raise his rental villa to create a studio. He obtains permission, but during the works, he adds an unforeseen terrace. The town hall refuses the modified planning permission. He challenges it. But the ground-floor tenant, bothered by the view, reports the infringement to the town hall. The public prosecutor brings proceedings. The owner risks a fine of €10,000 and demolition of the terrace. Even if he wins his administrative appeal, he will have to pay the fine and demolish. The only difference: if the modified planning permission is ultimately granted, he can rebuild after demolition, which is absurd, but the law is thus.

For a buyer, be vigilant: if you buy a house with unauthorised works, you inherit the risk of prosecution and demolition. Always check the conformity of buildings against the last permission. And if you are a tenant, you can report suspicious works to the town hall. The case law does not protect you, but you can act.

In summary: never rely on an administrative appeal to freeze criminal proceedings. If you have built without permission, you must either submit a regularisation application quickly (and hope it is accepted) or, if the refusal is final, voluntarily demolish to avoid a harsher sentence.

Four Tips to Avoid This Type of Dispute

• Consult an architect or town planner before modifying your plans. Do not rely on your intuition: the slope of the land, height, footprint... everything is regulated. In Bollène as in Apt, planning rules are strict. A professional will prevent you from building without permission.
• Always submit a modified planning permission before starting works. Even for a small modification, do not take the risk. The processing time is two to three months. Wait for the written consent. If you build before, you are in breach.
• Do not rely on an administrative appeal to suspend proceedings. As the Court of Cassation reminded, the appeal has no suspensive effect on criminal action. If you are prosecuted, you must defend yourself criminally in parallel.
• If you receive a report of infringement, immediately contact a lawyer lawyer. Deadlines are short: you have 10 days to submit observations. A lawyer can negotiate a settlement with the administration (payment of a fixed fine in exchange for dropping proceedings) or prepare your defence.

Further Exploration: Related Case Law and Developments

This 1994 decision is part of a consistent line. Already, in a judgment of 15 December 1992 (n° 91-85.294), the Court of Cassation had ruled that the unlawfulness of a refusal of permission does not affect the validity of proceedings for building without permission. More recently, the Criminal Chamber reaffirmed this principle in a judgment of 23 January 2018 (n° 17-80.112), specifying that the criminal court does not have to stay proceedings pending the administrative court's decision.

The trend is therefore clear: the courts show severity. They consider that public planning order takes precedence over individual rights. What few people know is that this case law also applies to prior declarations of works. If you carry out works without a declaration, or in excess, the same principle applies.

For the future, the Climate and Resilience Law of 2021 has strengthened planning sanctions. Fines have been increased, and settlement possibilities expanded. But the principle remains: no permission, no building. And the administrative appeal will not save you.

In Practice: What to Do

FAQ:

• Can I challenge a refusal of modified planning permission while continuing to build? No. If you build without permission, you commit an immediate offence, whatever the outcome of the appeal.
• What if I have already built without permission? Submit a regularisation application without delay. If it is refused, you will have to demolish. If it is accepted, you will be compliant for the future, but you still risk a fine for the period without permission.
• What are the limitation periods for the offence? The public prosecution is time-barred after 6 years from completion of the works. However, demolition can be ordered even after this period, as it is a restoration measure.
• Can I sell a property with unauthorised constructions? Yes, but you must inform the buyer. In practice, the notary will require a certificate of non-prosecution or a planning certificate. Without this, the sale is risky.
• Can the criminal court order demolition even if the modified planning permission is granted later? Yes, because the offence is constituted at the time of the works. However, the court may forgo demolition if regularisation has occurred. But this is not automatic.

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