Planning Derogation: When the Civil Court Cannot Review the Validity of Orders

Imagine the scene: you live in Aytré, a nice house with a garden, when your neighbour decides to build an extension less than two metres from the boundary line (the limit between your two properties). The local planning regulations prohibit any construction within two metres of this boundary. You are furious, you wonder: what can I do? Can I demand demolition?

This situation is experienced by dozens of homeowners each year. But the answer is not simple. Because your neighbour may have obtained a derogation from the town hall. And then, the civil court (the court that settles disputes between individuals) cannot challenge this administrative authorisation. This is exactly what the Court of Cassation (the highest judicial court) recalled in a judgment of 14 January 1975.

But then, how can you protect your rights? Should you challenge the derogation before the administrative court (the court competent to contest administrative decisions)? And if the derogation is illegal, can you still obtain compensation? Let us delve into this landmark decision.

The facts: a story like many that happen every day

Mr X is the owner of a property in Aytré. His neighbour, Mr Y, decides to build a block of flats. Problem: the building is located less than two metres from the boundary line (the limit between the two properties), in violation of the local planning regulations. Mr X is not happy: he takes the matter to court to obtain the demolition of the building.

But Mr Y has a strong argument: he obtained from the competent administrative authority (the town hall or the prefect) two derogation orders (exceptional decisions that authorise non-compliance with the rule). These orders were never challenged before the administrative court (the court competent to annul administrative decisions).

Before the Court of Appeal (the court that hears the case on second instance), Mr X argues that these derogations are themselves illegal, because they do not comply with planning rules. But the Court of Appeal declares itself incompetent (it refuses to judge this issue) on the ground that it cannot assess the validity of administrative acts, by virtue of the principle of separation of powers (the principle according to which the judicial courts cannot control the action of the administration).

Mr X appeals to the Court of Cassation (he asks the Court of Cassation to quash the judgment of the Court of Appeal). But the Court of Cassation dismisses his appeal: it confirms that the civil court cannot interpret or assess the validity of the derogation orders, as long as they have not been annulled by the administrative court.

The reasoning of the court — dissected

The Court of Cassation relies on the principle of separation of powers, inherited from the French Revolution and enshrined in the law of 16-24 August 1790. This principle prohibits the judicial judge (civil, criminal) from hearing cases involving acts of the administration, except for exceptions provided by law. In short, only the administrative court can annul or declare illegal an administrative decision, such as a derogation order.

In this case, the Court of Appeal had noted that the derogation orders existed and had not been challenged before the administrative court. Therefore, it was incompetent to assess their validity. The Court of Cassation approves this reasoning in these terms: 'the Court of Appeal rightly declares itself incompetent to assess the validity of the said orders which it does not have to interpret, by virtue of the principle of the separation of powers.'

But the Court goes further. It examines another argument of Mr X: the violation of the planning regulations would infringe a right of possession (the right to peacefully enjoy one's property). The Court dismisses this argument by specifying that the violation of a planning regulation does not infringe a right capable of possession (a right that can be protected by a possessory action, intended to defend the possession of a property). In other words, you cannot use a possessory action to enforce a planning rule.

In summary, the Court of Cassation confirms that the civil court cannot control planning derogations. If you want to challenge them, you must go before the administrative court, and this within a period of two months from their publication or notification.

What this means for you — concretely

This decision has important practical implications for owners, tenants and real estate professionals.

For the owner victim of an illegal construction: you cannot ask the civil court to demolish a construction simply because it violates the planning regulations, if a derogation has been granted. You must first challenge this derogation before the administrative court within a period of two months. Concrete example: your neighbour in Lagord builds a veranda 1 metre from the boundary, but he has a derogation order. You have two months to apply to the administrative court of Poitiers. After this period, the derogation becomes final and you can no longer challenge it. Only then can you ask the civil court for demolition if the construction does not comply with the derogation.

For the tenant: if you rent a property that violates planning rules, you may be exposed to disturbances of enjoyment (overlooking, loss of sunlight). But you cannot act directly against the owner on the basis of the planning regulations. You must invoke abnormal neighbourhood disturbance (a disturbance that exceeds the normal inconveniences of neighbourhood) or a breach by the lessor of his obligation to deliver (the obligation to provide you with accommodation fit for its purpose). undefined, I have encountered cases where tenants obtained rent reductions for loss of sunlight due to a building too close.

For the purchaser: before buying a property, always check the planning permissions (building permit, prior declaration) and any derogations. A seller who omits to mention a contentious derogation may incur liability for fraud (fraudulent misrepresentation) or failure to provide information. If you buy a property in Aytré and discover afterwards that the neighbouring building benefits from a derogation that causes you prejudice (loss of view, overshadowing), you can claim damages from the seller if he did not inform you.

Four tips to avoid this type of dispute

• Check the planning rules before buying or building: Consult the local development plan (PLU) of your municipality (Aytré, Lagord, etc.) to know the minimum distances from boundaries, maximum heights, etc. A surveyor can help you materialise the boundaries.
• Request your neighbour's planning permissions: If your neighbour undertakes works, ask him to provide you with his building permit or prior declaration. You can also consult the permissions posted at the town hall.
• Challenge derogations quickly: If a derogation causes you prejudice, act within two months of its publication. Apply to the administrative court by way of an application for judicial review (an action aimed at having an illegal administrative decision annulled). Do not wait, as the deadline is short.
• Negotiate an amicable solution: Before initiating proceedings, try to reach an agreement with your neighbour. Sometimes, a modification of the project (moving back a few metres) or compensation can resolve the conflict. Mediation (a process where a neutral third party helps to find an agreement) can be a less costly and faster option than a trial.

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Further reading: related case law and developments

The position of the Court of Cassation of 1975 is constant: the civil court cannot review the legality of individual administrative acts (such as a building permit or a derogation). This principle has been reiterated in other judgments, for example in a judgment of 3 May 2018 (No. 17-16.159) where the Court held that the civil court cannot order the demolition of a building constructed in accordance with a building permit, as long as that permit has not been annulled by the administrative court.

However, a notable development occurred with the law of 17 May 2011 known as the 'Bachelot law', which allows the civil court to stay proceedings pending the decision of the administrative court on the legality of the permit. In other words, the civil court can now invite you to challenge the permit before the administrative court, and wait for the result before ruling on the demolition. This facilitates coordination between the two orders of jurisdiction.

In practice, the trend is therefore towards better coordination between the civil court and the administrative court, but the principle of separation of powers remains fundamental. If a derogation or permit causes you prejudice, you must act quickly on two fronts: challenge the administrative act before the administrative court within two months, and simultaneously apply to the civil court for interim measures (such as suspension of works) or damages.

What you absolutely must remember

FAQ: practical questions

1. Can I demand the demolition of a building that violates planning regulations? Yes, but only if the planning permission (permit or derogation) has been annulled by the administrative court. Without this annulment, the civil court cannot order demolition.
2. My neighbour has an illegal derogation, what should I do? You must challenge this derogation before the administrative court within two months of its publication. If the deadline has passed, the derogation becomes final and you can no longer attack it.
3. Can I obtain damages without demolition? Yes, if you prove a prejudice (loss of sunlight, obstructed view, diminution in value of your property). You can act before the civil court on the basis of civil liability (Article 1240 of the Civil Code) or abnormal neighbourhood disturbance.
4. What are the time limits for acting? To challenge an administrative act: 2 months. For a civil liability action: 5 years from the manifestation of the damage. For a possessory action: 1 year from the disturbance.
5. Do I need a lawyer? Yes, because the procedures are technical. A lawyer specialised in property law and administrative litigation will be able to advise you and act effectively.

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 →