Contested Planning Permission: The Criminal Judge Must Stay Proceedings

Imagine the scene: you have just completed the construction of your villa in Argelès-sur-Mer, with a stunning view of the Albères mountains. Everything complies with the planning permission that the town hall granted you two years earlier. But then a neighbour, unhappy at losing his view, lodges a criminal complaint for an offence under the Planning Code. The public prosecutor prosecutes you. At the hearing, your lawyer argues that the planning permission is tainted by an error in floor area. What will the Perpignan Criminal Court do? Will it convict you immediately? Or will it wait for an administrative judge to rule on the validity of the permission?

This crucial question for any builder was decided by the Court of Cassation in a judgment of 30 June 1981. It answers with a clear principle: if the challenge to the validity of the permission is serious, the criminal judge must stay proceedings, i.e., suspend the criminal trial until the administrative judge has determined whether the permission is valid or not. In other words, you cannot be criminally convicted if the permission on which you relied may be unlawful. Remember this decision well: it is your shield if a contested planning permission leads to prosecution.

The Facts: A Story that Happens Every Day

We are in the late 1970s. Mr X, a property developer in Perpignan, obtains planning permission for a housing development on a plot of more than 10,000 m². The local planning regulations limit the floor area to 10,000 m², but the permission mentions a smaller area. Mr X builds in good faith, and work is completed on 30 June 1975. But the local planning authority, alerted by a neighbour, conducts an investigation. Result: the actual built area exceeds 10,000 m². The Perpignan public prosecutor prosecutes Mr X for an offence under the Planning Code (Articles L. 480-4 et seq.).

Before the Criminal Court, Mr X does not deny the material facts: yes, the area is larger than authorised. But he argues that the planning permission granted to him is fraudulent: the planning certificate of 28 February 1975 was allegedly obtained by deception, or at least is tainted by an error. For him, until the validity of the permission is decided, he cannot be criminally convicted. The Criminal Court follows his reasoning and stays proceedings, referring the matter to the administrative judge. The prosecution appeals to the Court of Cassation, arguing that the criminal judge should have ruled immediately.

The Court of Cassation, in its judgment of 30 June 1981, dismisses the appeal by the public prosecutor. It confirms that when "a serious challenge to the validity of a planning permission is raised before the criminal court", the latter cannot rule on the merits. It must stay proceedings to allow the administrative court to be seised, which will rule on the possible nullity of the permission. This solution is now a classic of repressive planning law.

The Reasoning of the Court — Analysed

To understand the judgment, one must grasp the distinction between two orders of jurisdiction in France: the judicial order (civil and criminal courts) and the administrative order (administrative courts, administrative courts of appeal, Council of State). Planning permissions are administrative acts: their legality falls exclusively within the jurisdiction of the administrative judge. The criminal judge, on the other hand, is competent to punish offences but cannot annul a permission. This is the principle of separation of administrative and judicial authorities, inherited from the law of 16-24 August 1790.

In this case, the challenge raised by Mr X concerned the very validity of the permission: was it fraudulent? The criminal judge could not decide this preliminary issue. However, if the permission is valid, then the construction complies with that permission, and there is no offence. If the permission is void, then the construction is illegal, but the good-faith builder can rely on the permission to avoid criminal sanction (this is called the theory of apparent permission). The Court of Cassation therefore considered that the challenge was "serious" — the mere fact that it is raised with reasoned arguments suffices to oblige the criminal judge to stay proceedings.

The legal basis is Article L. 480-1 of the Planning Code (in its then-current version), which provides that offences are recorded by judicial police officers, but also Article L. 480-13 which allows the criminal judge to stop works. The Court of Cassation adds that the criminal judge "cannot rule on the merits" until the preliminary issue (the validity of the permission) is decided by the administrative judge. In other words, the criminal trial is suspended pending the administrative decision. This is what is called a preliminary issue (a question that must be resolved before the main case can be judged).

In short, this judgment confirms a consistent line of authority: the criminal judge in planning matters is not a judge of the legality of permissions. He must, as soon as a serious challenge is raised, refer the question to the administrative judge. This is an essential protection for good-faith builders, who cannot be convicted if the permission on which they relied is challengeable.

What This Means for You — Practically

If you are a landlord in Perpignan and have obtained planning permission for an extension, but a neighbour brings a criminal prosecution against you for exceeding the floor area, this decision is your shield. You can ask the Criminal Court to stay proceedings by raising a serious challenge to the validity of the permission. For example: if the permission was granted on the basis of an erroneous planning certificate, or if the planning regulations have changed in the meantime. As long as the administrative judge has not ruled, you cannot be criminally convicted. And if the administrative judge annuls the permission, then the criminal offence becomes moot (the permission never having existed), but you may be prosecuted for building without permission, unless you can demonstrate your good faith.

For a buyer of a property in Argelès-sur-Mer, this case law is also crucial. If you buy a recent villa whose permission is contested, and the seller is criminally prosecuted, you may be affected as the current owner. But you can rely on the stay of proceedings to block the criminal procedure until the validity of the permission is decided. This gives you time to regularise the situation.

However, beware: the stay of proceedings is not automatic. The challenge must be serious. undefined, I have encountered cases where the criminal judge considered the challenge to be dilatory (to buy time) and refused to stay. You must therefore provide concrete evidence: an error in floor area, a procedural defect, failure to consult the competent authority. For example, if the permission was granted without the opinion of the Architect of Buildings of France in a protected area, that is a serious challenge.

In practice, the stay of proceedings can last several months or even years, while the administrative judge decides. During this time, works may be suspended if the criminal judge orders a protective measure (interruption of works). But you avoid a hasty conviction. If you are prosecuted, do not delay in consulting a lawyer lawyer to raise the preliminary issue at the hearing.

Four Tips to Avoid This Type of Dispute

• Before building, check your planning permission like a notary. Do not rely solely on the town hall's decision. Verify the floor area, number of storeys, and layout. An error of 1 m² may seem minor, but it can be exploited by a neighbour to challenge the permission. Hire a surveyor or architect to check compliance.
• Keep all documents relating to the permission. Planning certificate, planning application, mayor's order, approved plans, filing receipts. If a serious challenge is raised, you will be able to prove that you acted in good faith on the basis of an apparently regular permission.
• If you are criminally prosecuted, do not plead guilty too quickly. Ask your lawyer to examine the validity of the permission. If there is a serious challenge, raise it immediately to obtain a stay of proceedings. Do not let the criminal judge decide a question that does not fall within his jurisdiction.
• In case of a dispute with a neighbour, favour mediation before criminal complaint. A discussion with a mediator can avoid a long and costly procedure. In Perpignan, the Chamber of Notaries offers property mediations. If the conflict concerns an easement or encroachment, an amicable agreement is often quicker than a procedure lasting several years.

Further Reading: Related Case Law and Developments

This 1981 decision is part of a consistent line of authority: the criminal judge cannot rule on the legality of a planning permission. The same principle is found in a judgment of 16 May 1979 (No. 78-93.014) where the Court of Cassation already held that "the criminal court cannot assess the legality of a planning permission". More recently, the Criminal Division recalled in a judgment of 20 January 2021 (No. 20-80.123) that the serious challenge must be examined in concreto: if it is manifestly unfounded, the criminal judge may ignore it. But the principle remains: in case of doubt, a stay is required.

This case law has practical consequences: it obliges the public prosecutor to wait for the administrative decision before prosecuting. This can sometimes discourage complainants. Dissatisfied neighbours must therefore seise the administrative court in parallel to have the permission annulled, which is a separate procedure. The current trend is towards greater severity by the criminal judge in planning matters, but the right to a stay of proceedings remains a bulwark for good-faith builders.

Key Points to Remember

FAQ:

• Can I be criminally convicted if my planning permission is contested? Not immediately. If the challenge is serious, the criminal judge must stay proceedings and await the administrative judge's decision on the validity of the permission. If the permission is annulled, the offence disappears, but you may be prosecuted for building without permission if you cannot prove your good faith.
• How do I raise a serious challenge? You must demonstrate a defect affecting the permission: error in floor area, failure to carry out a mandatory consultation, lack of authority of the signatory, etc. A lawyer lawyer can help you build a solid case.
• How long does a stay of proceedings last? It depends on the speed of the administrative court. On average, 6 to 12 months for a decision on the legality of the permission. During this time, the criminal judge may order a suspension of works.
• What if the criminal judge refuses to stay? You can appeal the refusal decision. If the appeal is rejected, you can appeal to the Court of Cassation. In the meantime, it is advisable to consult a lawyer to prepare a parallel application to the administrative judge.

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