Lack of Building Permit: The Prefect Cannot Challenge the Court Decision Alone

Imagine: you have just bought a lovely house in Chemillé-en-Anjou. The previous owner had built an extension without a building permit (prior administrative authorisation for certain works). The Prefect (the State's representative in the department) discovers the infringement and sues you to obtain demolition. But the court rules in your favour and refuses demolition. The Prefect, unhappy, decides to appeal. But can he really do so?

This is precisely the question that the Court of Cassation (the highest French court) decided on 14 October 1980. This decision, little known to the general public, is nevertheless fundamental for any property owner or real estate professional. It lays down a simple rule: in criminal proceedings for lack of a building permit, only persons who are parties to the proceedings may exercise a right of appeal. The Prefect, who is not a party, cannot appeal to the Court of Cassation (a remedy against a court decision) if he has not been involved in the proceedings.

But what does this actually change for you? Much more than it seems. This decision limits the powers of the administration and protects litigants against abusive appeals. Let's break it down together.

The Facts: An Everyday Story

To understand this decision, we need to delve into the story. Mr X, a property owner in Chemillé-en-Anjou, had undertaken construction work without first obtaining a building permit. The Town Planning Code is clear: certain works must be authorised by the town hall, subject to criminal penalties (fine, demolition...). The Prefect, informed of the infringement, referred the matter to the criminal court (criminal tribunal) against Mr X.

During the trial at first instance, the court found Mr X guilty of the offence of building without a permit (Article L. 480-4 of the Town Planning Code). However, the court refused to order the demolition of the construction, although requested by the Prefect. Why? Because the judge considered that demolition was not necessary or proportionate. In short, he left the construction as it was.

The Prefect, dissatisfied, appealed this decision. The Court of Appeal (second instance court) upheld the refusal of demolition. The Prefect then attempted an appeal to the Court of Cassation. But the Court of Cassation dismissed his appeal for a procedural reason: the Prefect was not a party to the criminal proceedings. Why? Because in criminal proceedings for lack of a building permit, only persons cited as parties (the accused, the public prosecutor, the civil party) can exercise appeals. The Prefect, although he had requested demolition, was not formally a party to the proceedings. Therefore, he could not appeal to the Court of Cassation.

This case illustrates a fundamental principle of criminal law: only parties to the proceedings can challenge a decision. The Prefect, as an administrative authority, had no standing to appeal in cassation.

The Reasoning of the Court — Explained

The Court of Cassation based its decision on a strict interpretation of the texts. It recalled that, in criminal proceedings, only persons who are parties to the proceedings may be allowed to exercise a remedy. Article L. 480-5 of the Town Planning Code, which allows the court to order demolition, does not make the Prefect a party to the criminal proceedings. The Prefect is merely a claimant for demolition, but he is not cited as a party.

In other words, the Court distinguished two roles: that of a 'party' (who has procedural rights, such as the right to appeal or to appeal in cassation) and that of a 'simple applicant' (who can ask the court for something, but without having the same rights). The Prefect, by requesting demolition, did not thereby become a party.

What few people know is that this decision was rendered in a context where the case law was still unclear. Today, it is authoritative. It confirms that the administration cannot circumvent the rules of criminal procedure to impose its views. This protects litigants against abusive appeals by the administration, which could otherwise multiply appeals to obtain a favourable outcome.

However, note: this decision does not mean that the Prefect is completely powerless. He can still intervene in the proceedings by becoming a civil party (bringing a civil claim as a victim of the offence) or by using other administrative avenues. But within the strict framework of an appeal in cassation, he must be a party to the proceedings.

In summary, the Court of Cassation applied the general principle of criminal procedure that no one may exercise a remedy if they are not a party. A logical decision, but with important practical consequences.

What This Changes for You — Practically

This decision has direct implications for several profiles. If you are the owner of a property built without a permit, know that the Prefect cannot challenge alone a court decision that is favourable to you. In clear terms, if a court refuses demolition, the Prefect cannot appeal to the Court of Cassation on his own initiative. This gives you a certain legal security.

For a landlord-owner in Saumur, imagine you have carried out works without a permit. The court fines you but refuses demolition. The Prefect will not be able to have this decision overturned by the Court of Cassation, unless he has become a civil party to the proceedings. This saves you years of additional proceedings.

For a purchaser, this decision is reassuring: if you buy a property with unauthorised works, you are not at the mercy of a Prefect's appeal against a decision favourable to you. But beware: this does not exempt you from regularising the situation (obtaining a retrospective permit or demolishing voluntarily).

For a tenant, the situation is more indirect. But if you rent a dwelling built without a permit, you could be exposed to risks of demolition. However, the Prefect cannot act in cassation if he is not a party, which may slow down proceedings.

undefined, I have encountered cases where owners were harassed by the administration after an initial favourable decision. This case law allowed them to cut short abusive appeals. Practically, if you are in this situation, you must check whether the Prefect was a party to the proceedings. If he was not, his appeal in cassation will be inadmissible.

Four Tips to Avoid This Type of Dispute

• Before any works, check whether a building permit is required. Inquire at your town hall or with an architect. Some works (extension of less than 20 m², for example) may be exempt from a permit, but others are not. In Chemillé-en-Anjou, the rules may vary according to the Local Town Planning Plan (PLU).
• If you have already built without a permit, regularise as soon as possible. Submit a retrospective building permit application (after the fact) or, if impossible, consider voluntary demolition. This will avoid criminal proceedings.
• In the event of criminal proceedings, ensure that the Prefect is indeed a party. If he is not, you will be able to challenge his subsequent appeals. Consult a lawyer as soon as you receive the summons.
• Keep all documents relating to your construction. Permits, plans, photos, certificates... In the event of a dispute, this evidence will be crucial to demonstrate regularity or good faith.

Further Reading: Related Case Law and Developments

This 1980 decision is part of a consistent line of case law. A few years earlier, the Court of Cassation had already ruled that the Prefect was not entitled to appeal in cassation in demolition proceedings (Cass. crim., 12 July 1977). The 1980 decision confirms and clarifies this rule.

Since then, the trend of the courts has been to limit appeals by administrations in criminal matters. For example, the Court of Cassation ruled that the mayor could not appeal in cassation against an acquittal in a town planning case, unless he was a civil party (Cass. crim., 3 March 1998).

Note, however: this case law only concerns appeals in cassation. The Prefect can still appeal against a first-instance decision, as he is a party to the appeal proceedings. The rule is therefore specific to cassation.

What does this trend mean for the future? The courts seem to want to protect litigants against overly easy administrative appeals. This reinforces the balance of arms between the administration and individuals.

Key Points to Remember

FAQ:

• Can the Prefect appeal against a decision refusing demolition? Yes, because on appeal he is considered a party (he was cited in the proceedings). The rule only concerns appeals in cassation.
• What if the Prefect appeals in cassation without being a party? You can raise the inadmissibility of his appeal before the Court of Cassation. A lawyer will help you draft a brief.
• Does this decision apply to other appeals by the administration? Yes, the principle is general: the administration must be a party to the proceedings to exercise an appeal in cassation.
• Can I be ordered to demolish without the Prefect being a party? Yes, the court may order demolition of its own motion, even without a request from the Prefect. But if the court refuses, the Prefect cannot challenge this refusal in cassation.
• Is this case law still current? Yes, it has never been overturned. It is regularly invoked in trials.

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