Planning Derogation: When Your Neighbour's Planning Permission Cancels Your Right to Compensation

Picture the scene: you own a flat with a stunning view over the rooftops of Grasse, from your terrace you dominate the city. One morning, construction machinery sets up on the neighbouring plot. Months pass, and a building 47 metres high rises up, blocking your view and plunging your living room into shadow. You check the town's development plan: the maximum permitted height is 35 metres. You are furious, and rightly believe you are entitled to compensation. But the developer has obtained a prefectural derogation order, upheld by the administrative court. What can you do? This 1965 decision of the Court of Cassation, nearly 60 years old but still relevant, gives you an answer: if the derogation is lawful, your right to compensation vanishes.

The question every owner facing an allegedly illegal building asks is simple: Can I obtain damages for the loss of enjoyment I have suffered? The answer depends on the legality of the building. If it was authorised by a lawful prefectural derogation, and that derogation has been confirmed by the administrative court, the civil court cannot award you compensation. In short, administrative law prevails over civil law in this specific case.

However, beware: this decision does not mean you are without remedy. It requires you to act quickly before the administrative court to challenge the derogation itself. Once it becomes final, it is too late to obtain compensation before the civil court. This is what the judgment of 25 January 1965 illustrates, which we will analyse together.

The facts: a story that happens every day

Let's go back to 1965. A construction company (let's call it Company X) undertakes to build two residential blocks in a town whose development plan limits building height to 35 metres. However, one of the buildings reaches 47.35 metres, an excess of more than 12 metres. The owner of a neighbouring building, Mr Y, sees his view obstructed and his flat plunged into shadow. He sues the company before the civil court for compensation for loss of enjoyment, under Article 1240 of the Civil Code (which requires compensation for damage caused by fault).

But the company defends itself by producing a prefectural derogation order allowing it to exceed the height limit. Mr Y challenges this order before the administrative court, but the court declares it lawful. Consequently, the Court of Appeal, seised by Mr Y, considers the building legal, and therefore there is no fault within the meaning of Article 1240. Mr Y appeals to the Court of Cassation.

The Court of Cassation upholds the decision of the Court of Appeal. It holds that the right relied on by Mr Y was 'reduced to nothing' by the prefectural derogation order, which was lawful and binding on all. In other words, even if the development plan sets a height limit, the prefect may derogate from it by a reasoned order, and this derogation, if upheld by the administrative court, binds the civil court. Mr Y cannot therefore obtain compensation, because the building is not illegal.

The reasoning of the court — analysed

In this judgment, the Court of Cassation applies a fundamental principle of French law: the separation of administrative and judicial authorities. The civil court (which rules on disputes between individuals) cannot assess the legality of an administrative act (such as a prefectural order): that is the exclusive role of the administrative court. Once the administrative court has upheld the order, it is deemed lawful and binds everyone, including the civil court.

In this case, the Court of Appeal had noted that the planning permission had been granted in execution of a prefectural derogation order, itself recognised as lawful by the administrative court. Consequently, the building was legal. However, to establish the company's civil liability in tort under Article 1240, a fault must be proved. In the absence of illegality, there is no fault. The loss of enjoyment suffered by Mr Y is therefore damage that cannot be compensated, because it is not the result of a fault.

What few people know is that the Court of Cassation goes further: it states that the provisions of the development plan have the same authority as the derogations made to them. In other words, a lawful derogation is as valid as the rule it modifies. This means that the owner cannot rely on the development plan to invoke a fault if a derogation has been granted.

In short, the Court of Cassation here confirms constant case law: the civil court is bound by administrative legality. If you wish to challenge a building, you must first attack the administrative act that authorises it (planning permission, derogation) before the administrative court, and within very short time limits (generally two months). Once that period has passed, the act becomes final and you will no longer be able to obtain compensation before the civil court.

What this means for you — in practice

So, what should you do if you are faced with a similar situation? It depends on your profile.

For owner-occupiers or landlords: If you see a building going up in apparent violation of planning rules (height, alignment, etc.), do not delay. You have two months from the posting of the planning permission on the site to challenge it before the administrative court. Concrete example: in Mandelieu, an owner of the 'Les Pins' residence saw a developer build a 7-storey building when the local plan (PLU) only permits 5. If he had acted within two months, he could have obtained the cancellation of the permission. But he waited a year, and the permission became final. Result: no compensation possible for the loss of view, even though the building exceeds the permitted height.

For tenants: You also suffer the loss of enjoyment (loss of view, reduced sunlight). But you are not the owner, so you cannot act directly against the permission. However, you can ask your landlord for a rent reduction if the disturbance is serious enough, or inform him so that he can act. But beware: if the permission was lawfully granted with a derogation, your landlord will have no remedy either.

For buyers: Before buying a property, check the neighbouring buildings and permissions granted. A developer may have obtained a derogation that will reduce your future view. Ask to see the planning certificates and planning permissions of neighbouring plots. If a project is underway, inquire about any derogations. undefined, I have come across cases where buyers had purchased a flat with a sea view in Grasse, only to discover two years later that a 10-storey building was to be built directly opposite, with a prefectural derogation. They had no remedy, because the permission had been posted before their purchase.

For co-owners: If your co-ownership suffers a collective disturbance (loss of sunlight for several units), the co-ownership can take legal action to defend the collective interest. But again, the two-month period to challenge the permission is mandatory.

In summary: time is your enemy. As soon as you become aware of a construction project, consult a lawyer lawyer to assess your chances of challenging it before the administrative court.

Four tips to avoid this type of dispute

• Monitor planning permission signs: When planning permission is granted, a sign must be posted on the site for the duration of the works. Photograph it as soon as you see it. This sign mentions the characteristics of the project (height, area, etc.). It starts the two-month deadline for appeal. If you do not see it, you can challenge the permission up to one year after completion of the works, but it is better to act quickly.
• Consult your commune's PLU: In Grasse, the PLU is available at the town hall or online. Check the maximum heights, alignment rules, easements. If a neighbouring project seems non-compliant, note the precise discrepancies.
• Act within two months: If you believe a planning permission is illegal, send a formal appeal to the mayor (who may withdraw the permission) and/or apply to the administrative court. Legal fees can be high (between €1,500 and €3,000), but it is the only way to prevent the construction or obtain compensation.
• Anticipate in your property transactions: If you are selling or buying, mention in the preliminary contract any known construction projects. The buyer may request a condition precedent relating to the absence of adverse planning changes. In the event of a dispute, a lawyer can help negotiate a price reduction.

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Further reading: related case law and developments

This 1965 decision is not isolated. It forms part of a line of Court of Cassation judgments establishing the primacy of the administrative act over ordinary civil liability law. For example, in a judgment of 12 November 1998 (No. 96-22.065), the Court of Cassation ruled that the grant of planning permission does not preclude an action in liability based on an abnormal neighbourhood disturbance (theory of abnormal neighbourhood disturbances). But beware: this action is distinct from an action for violation of a planning rule. If the permission is legal, the abnormal disturbance can still be invoked, but it is necessary to prove damage exceeding the normal inconveniences of neighbourhood. In our 1965 judgment, the basis was fault (violation of the development plan), not abnormal disturbance. So the outcome may be different if you invoke the theory of abnormal disturbances.

Since 1965, planning law has evolved with the creation of PLUs and the multiplication of possible derogations. But the principle remains the same: a lawful and final derogation prevents any action based on the illegality of the construction. The trend of the courts is increasingly protective of owners' rights, but only if they act in time. Administrative judges are more inclined to cancel permissions if the appeal is made promptly.

Summary and next steps

FAQ:

Can I obtain compensation if my neighbour's building exceeds the height permitted by the PLU? Yes, if the planning permission was not lawfully granted or if the derogation has been annulled. You must act within two months of the posting of the permission.

What if the developer has obtained a prefectural derogation? You must challenge this derogation before the administrative court within two months. If you succeed, the building becomes illegal and you can claim compensation before the civil court.

What are the time limits for acting? Two months from the posting of the permission on the site. If the sign was not posted, you have one year after completion of the works.

What are the costs of proceedings? Lawyer's fees range from €1,500 to €5,000 depending on complexity. Court costs are low (a few hundred euros). But compensation can reach several tens of thousands of euros for a significant loss of view.

And if I am a tenant, do I have any rights? You can ask your landlord for a rent reduction if the disturbance is serious. But you cannot act directly against the builder.

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 →