Construction Without Planning Permission: Regularisation Does Not Erase the Offence (Cass. crim. 1974)

You have just purchased a beautiful villa in Roquebrune-Cap-Martin, with stunning views of the Mediterranean. The previous works? A shed at the back of the plot, built three years ago. The seller assures you: 'I regularised it, I have the planning permission.' Are you safe? Not so sure. The question that every owner who inherits a dubious construction asks themselves: can they really sleep soundly once a regularisation permit has been issued?

This decision of the Court of Cassation from 1974 answers in the negative. It reminds us of a fundamental rule: the offence of construction without planning permission (a criminal offence) is constituted on the day of construction, and a permit obtained afterwards does not erase it. For owners in Beausoleil or elsewhere, this is a clear warning.

But then, what is the point of a regularisation permit? And what are the risks if you are in this situation? Let's delve into the facts and the judges' reasoning.

The Facts: A Story That Happens Every Day

Imagine Mr. X, a contractor from Roquebrune-Cap-Martin. In 1971, without waiting for the precious document, he built a shed to store his trucks. He knew that planning permission was required, but time was pressing. A few months later, on 16 May 1972, he obtained planning permission... for regularisation. Relieved, he thought the matter was closed.

Alas! The administration did not intend to let what it considered an offence pass. Mr. X was prosecuted before the criminal court for construction without planning permission. At first instance, he was convicted. He appealed, arguing that the regularisation permit had 'cured' the situation. The Court of Appeal upheld the conviction. In its view, the offence was constituted on the day the structures were erected, without authorisation.

Mr. X appealed to the Court of Cassation. His argument? 'You cannot say that I built without permission and at the same time note that I obtained one. That is contradictory.' The Court of Cassation did not see it that way: no, there is no contradiction. The offence is instantaneous; the subsequent permit does not erase it.

The Reasoning of the Court — Analysed

The judges rely on Article L. 421-1 of the French Planning Code (in its then-current version), which penalises the act of erecting a building without having first obtained planning permission. The offence is constituted as soon as the works are carried out without authorisation. It does not matter if regularisation subsequently occurs: the offence exists, it is completed.

Mr. X's defence invoked a contradiction in the grounds of the appeal judgment: 'You admit that I have a permit, but you convict me for not having had one.' The Court of Cassation dismissed the argument: the regularisation permit is an administrative act that authorises the construction retrospectively, but it does not have the effect of erasing the criminal fault committed. This is a confirmation of previous case law, which clearly distinguishes administrative regularisation from a criminal offence.

In other words, planning criminal law punishes conduct at the time of the facts. It is not a right that can be 'cured' by a late authorisation. The judges thus remind that urban planning public policy must be respected from the outset.

What This Means for You — Practically

If you are an owner in Beausoleil and have inherited a construction without planning permission, even if regularised, you may be criminally prosecuted. The consequences? A fine of up to €120,000 (under Article L. 480-4 of the Planning Code), and even an order to demolish or restore the premises. For example, a 100 m² shed built without planning permission in Beausoleil, even regularised in 2022, could result in a fine of €10,000 if the administration decides to prosecute.

For a tenant, be vigilant: if you rent a property with an unauthorised extension, you could be involved in a dispute between the owner and the town hall. As a buyer, demand a certificate of non-prosecution or a planning certificate.

If you are in this situation, you should consult a specialist solicitor to assess the risks. The limitation period for criminal proceedings is 6 years (the general rule), but it runs from the discovery of the offence. Better to act quickly.

Four Tips to Avoid This Type of Dispute

• Before building, check whether planning permission is required: For any creation of floor space or ground area exceeding 20 m², a permit is necessary. Enquire at your local town hall's planning department.
• Never start work before obtaining planning permission: Even if the application process is long, wait for the decision. Acting prematurely is risky and may be held against you.
• In case of regularisation, do not believe everything is settled: A regularisation permit avoids administrative demolition, but not criminal prosecution. Consult a solicitor to understand your situation.
• If you buy a property with recent constructions, demand the permits: Ask the seller for planning permissions. If in doubt, carry out a planning search at the town hall.

Further Reading: Related Case Law and Developments

This solution has been confirmed subsequently. For example, in a judgment of 20 February 1991 (No. 90-82.976), the Court of Cassation held that the grant of a regularisation permit does not bar criminal proceedings. The trend is consistent: judges protect urban planning public policy.

On the other hand, a notable development: since the ALUR law of 2014, town halls may issue regularisation permits with an increased development tax. This encourages regularisation but does not erase the offence. In the future, courts are expected to become increasingly strict, especially with undeclared constructions in high-demand areas like the Côte d'Azur.

What You Absolutely Must Remember

FAQ

Can I be prosecuted for a construction without planning permission if I have regularised it?
Yes, the regularisation permit does not erase the criminal offence. You may be fined.

What should I do if I have inherited a construction without planning permission?
Consult a solicitor to assess the risks. You can attempt regularisation, but it does not protect you from prosecution.

What is the limitation period for this offence?
6 years from the discovery of the offence. Note that the construction may be discovered at any time.

Can I sell a property with an unauthorised construction?
Yes, but you must inform the buyer. If it is a latent defect, you could be sued.

What is the maximum fine for construction without planning permission?
Up to €120,000, with the possibility of demolition.

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