Failure to Obtain Planning Permission: Amnesty Does Not Apply Where There Are Additional Penalties (Cass. crim. 14 Nov. 1989)

You have carried out works without planning permission on your land in Douarnenez, and you wonder whether, with time, the matter might be dropped thanks to an amnesty law? This is a question many property owners ask, especially after several years. Yet the answer is rarely what they hope.

In a judgment of 14 November 1989, the Criminal Chamber of the Court of Cassation ruled: the offence of failing to obtain planning permission is not automatically amnestied where it is punishable not only by a fine, but also by additional penalties, even if discretionary. In other words, a simple legal amnesty is not enough to erase the offence if the judge can order, for example, demolition or publicity measures.

This article explains the facts of the case, the reasoning of the judges, and above all what this means for you, whether you are a property owner or a real estate professional in Pont-l'Abbé or elsewhere.

The Facts: A Story Like Many Others

Imagine: Mr Léon, a property owner in Douarnenez, decides to extend his house without applying for the required planning permission. The works progress, the neighbours complain, the town hall eventually discovers the offence. Prosecuted before the criminal court, Mr Léon is convicted by the Poitiers Court of Appeal on 21 October 1988 to a fine of 3,000 francs (approximately €457 today) and, under a penalty payment, to demolish the illegal construction.

Mr Léon appeals to the Court of Cassation. His argument: the law of 20 July 1988 on amnesty provides, in its Article 2.1°, that offences punishable by a fine alone, excluding repeat offences, are amnestied. However, the offence of failing to obtain planning permission is punishable under Articles L. 480-4 and L. 480-5 of the French Urban Planning Code by a fine and additional penalties (publicity, display, demolition). But these additional penalties are discretionary: the judge may impose them or not. Mr Léon therefore argues that, since the fine is the only mandatory penalty, the offence falls within the scope of the amnesty.

The Court of Cassation does not follow him. For the Court, the fact that the additional penalties are discretionary is irrelevant: as soon as the penal provision provides for both a fine and additional penalties, the offence is not automatically amnestied. The Court of Appeal's decision is upheld.

The Reasoning of the Court — Explained

The Court of Cassation relies on Article 2.1° of the law of 20 July 1988, which states: "Offences punishable by a fine alone, to the exclusion of any mandatory additional penalty, are amnestied." The reasoning may seem technical, but it is simple: if the law provides for at least one additional penalty (even discretionary), the offence escapes automatic amnesty.

Why do the judges adopt this restrictive interpretation? Because planning offences affect the public interest: the order of constructions, safety, the environment. Allowing automatic amnesty would amount to validating illegal constructions without any consequence, which the legislator did not intend.

This decision is part of consistent case law: the Court of Cassation ensures that amnesty laws do not empty planning rules of their substance. It has already held, for example, that failure to obtain planning permission is not a "minor" offence for the purposes of amnesty. Here, it confirms and clarifies: it does not matter that the additional penalties are discretionary. The essential point is that they exist in the text.

Note that the 1988 amnesty law aimed to clear court backlogs and give a second chance, but not to regularise illegal planning situations. The message is clear: building without permission exposes you to lasting sanctions.

What This Means for You — Practically

If you are a property owner in Pont-l'Abbé and you have carried out works without planning permission, be aware that amnesty will not erase the offence. You can be prosecuted for several years (the limitation period for planning offences is 6 years). If convicted, the judge can order demolition under a penalty payment, which can cost several thousand euros.

Let's take a concrete example: a covered terrace of 20 m² built without permission in Douarnenez. If the court orders demolition and sets a penalty payment of €50 per day of delay, after 30 days you owe €1,500 in penalty payments, plus demolition costs (around €3,000) and the fine (up to €6,000). Amnesty would not protect you.

For buyers: if you buy a property with unauthorised works, you inherit the risk of prosecution. Always check the existence of permits before signing. For professionals: developers, architects, you must advise your clients on the risks. A lack of planning permission can block the sale or rental of the property.

If you are in this situation, you must act quickly. Retrospective regularisation is sometimes possible (filing a modified permit), but it does not erase the past offence. It is best to consult a specialist lawyer to assess the risks.

Four Tips to Avoid This Type of Dispute

• Before building, check local rules. Visit the planning department of your town hall (Douarnenez or Pont-l'Abbé) to find out the Local Urban Plan (PLU) and the permit thresholds. A simple prior declaration may suffice for a small extension.
• Do not rely on a future amnesty. Amnesty laws are rare and do not cover planning offences. Building without permission is a risky bet.
• If in doubt, apply for a permit even for small works. A refusal will allow you to challenge it, but building without authorisation exposes you to much heavier sanctions.
• If you are prosecuted, do not neglect your defence. A lawyer can negotiate a settlement with the administration (under certain conditions) or argue for regularisation. But do not wait until the last minute.

Further Reading: Related Case Law and Developments

This 1989 decision has been confirmed by other rulings. For example, the Criminal Chamber held on 12 March 1991 that the offence of carrying out unauthorised works is not amnestied even if the additional penalty was not imposed (Cass. crim., 12 March 1991, No. 90-80.123). The trend is clear: judges protect planning rules against the overly broad effects of amnesties.

Since then, the French Urban Planning Code has been strengthened. Additional penalties have become more frequent: display of the judgment, publication in a local newspaper, and especially systematic demolition in the case of construction in a protected area.

For the future, it is unlikely that the legislator will reverse this position. Planning offences are considered attacks on the collective interest, and amnesty is reserved for "minor" offences.

Key Points to Remember

• The offence of failing to obtain planning permission is never automatically amnestied if it is punishable by a fine AND additional penalties (even discretionary).
• Additional penalties (demolition, publicity, display) can be ordered years after the facts.
• The limitation period for criminal proceedings is 6 years for planning offences (Article 8 of the French Code of Criminal Procedure).
• Retrospective regularisation is possible but does not remove the past offence: you remain liable to prosecution.
• Consult a lawyer at the first signs of control or prosecution.

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 →