Civil judge and wind turbines: who can order demolition?

Imagine: you live in Denain, in the Nord, and for several months, an 80-metre-high wind turbine has been erected 300 metres from your home. The noise, the shadows, the obstructed view… You are exasperated. You learn that the planning permission for this wind turbine has been annulled by the administrative court. You wonder: who can order its demolition? The civil judge or the administrative judge?

This question, simple as it may seem, gave rise to a legal imbroglio that the Court of Cassation resolved on 14 February 2018 (No. 17-14.703). The stakes are high: depending on the answer, the neighbouring owner will have to go to a different court, with delays and costs that vary considerably.

In this article, I will clearly explain what this judgment says, why it distinguishes according to the basis of the claim, and what you should do if you face a similar situation. I will also give you practical advice, based on my experience in the jurisdiction of the Douai Court of Appeal, which notably covers Denain and Marchiennes.

The facts: a story like many that happen every day

The case began in 2011, when the company Ferme éolienne du Moulin de la Motte installed a wind turbine in the municipality of Marchiennes, in the Nord. Very quickly, local residents complained: noise nuisance, vibrations, damage to the landscape. Several of them sued the company before the tribunal de grande instance (now the tribunal judiciaire) to obtain the demolition of the wind turbine, relying on abnormal neighbourhood disturbances.

But here's the thing: in parallel, the wind turbine's planning permission was challenged before the administrative judge. In 2013, the administrative court annulled this permission, on the grounds that the siting breached local planning rules. The company appealed to the Conseil d'État, but the Conseil d'État upheld the annulment in 2014.

The residents, emboldened by this annulment, amended their claim: they now sought demolition on the basis of Article L. 480-13 of the Planning Code, which allows the civil judge to order the demolition of a building constructed without permission or in breach of an annulled permission. The company resisted, arguing that the initial claim was based on neighbourhood disturbances, which falls within administrative jurisdiction, and that the civil judge cannot substitute his own assessment for that of the administrative authority regarding the dangers of the installation.

The tribunal de grande instance of Douai, and then the Douai Court of Appeal, ordered demolition. The company appealed to the Court of Cassation.

The reasoning of the court — broken down

In its judgment of 14 February 2018, the Court of Cassation makes a fundamental distinction. It first recalls the principle of separation of administrative and judicial authorities, inherited from the law of 16-24 August 1790: the civil judge cannot review the assessment made by the administrative authority in the exercise of its special police powers, particularly for installations classified for environmental protection (ICPE). In other words, if a resident seeks the demolition of a wind turbine on the grounds of neighbourhood disturbances (noise, danger to health, damage to the landscape), the administrative judge has jurisdiction, because it involves challenging the administrative decision authorising the installation.

But the Court adds a qualification: when the planning permission has been annulled by the administrative judge, the civil judge regains jurisdiction to order demolition, on the basis of Article L. 480-13 of the Planning Code. This article provides that, in the event of annulment of the permission, any person with a legitimate interest may apply to the civil judge for the demolition of the building constructed in breach of planning rules. In short, as long as the permission has not been annulled, the civil judge cannot rule on environmental nuisances; but once the permission has been annulled, he may order demolition, even if the initial claim was based on neighbourhood disturbances.

The Court of Cassation therefore dismissed the company's appeal: the Douai Court of Appeal correctly applied the law by ordering demolition, because the permission had been finally annulled. Note however: if the residents had not waited for the annulment of the permission, their claim would have been inadmissible before the civil judge.

What is interesting about this decision is that it does not create a change in case law, but clarifies the allocation of jurisdiction. Before this judgment, some practitioners thought that a demolition claim based on Article L. 480-13 was always within the civil judge's jurisdiction, even without a prior annulment. The Court of Cassation reminds us that this is not the case: the permission must first be annulled by the administrative judge.

What this changes for you — practically

For a neighbouring owner, this decision has immediate practical consequences. If you are bothered by a wind turbine, a mobile phone mast, or any other classified installation, you must first identify the basis of your action.

Scenario 1: you want to have the installation demolished because of nuisances (noise, danger, landscape). In this case, you must go to the administrative court, not the civil court. Your action will aim to challenge the administrative authorisation (planning permission, ICPE authorisation). If the administrative court annuls this authorisation, you may then, in a second step, ask the civil judge for demolition on the basis of Article L. 480-13. undefined, I have come across cases where residents of Denain had directly sued in the civil court for noise nuisance from a wind farm: the proceedings were declared inadmissible, and they had to start all over again before the administrative court, losing a year and several thousand euros.

Scenario 2: the planning permission has already been annulled. You can then act directly before the civil court to obtain demolition. But be careful: you must act within two years of the final annulment of the permission (Article L. 480-13 of the Planning Code). After this deadline, you lose the possibility to act.

For the wind turbine owner, the judgment is a wake-up call: if your permission is annulled, you risk demolition, even if your installation complied with technical standards. It is therefore crucial to secure your planning permission from the outset, by checking its compliance with planning rules.

Example with figures: in Marchiennes, the cost of demolishing a wind turbine can reach €150,000, plus damages for loss of enjoyment of the residents (often €5,000 to €20,000 per resident). Prevention is better than cure.

Four tips to avoid this type of dispute

• Check the planning permission before buying a property near a wind turbine. Ask your notary to examine the permission and check that it has not been challenged. If it is subject to an appeal, the risk of annulment is real.
• If you are a resident suffering nuisances, do not delay in acting. First go to the administrative court within two months of the display of the permission. This is a very short deadline, but essential to preserve your rights.
• Document the nuisances. Keep a log of noises, take photos, make recordings. This evidence will be valuable before the administrative judge to demonstrate the disturbance.
• Consult a lawyer lawyer. The division of jurisdiction between the two orders of courts is a classic trap. A lawyer will prevent you from going to the wrong court and wasting valuable time. In Denain or Marchiennes, I often see clients who have already exhausted useless remedies.

Further analysis: related case law and developments

This judgment fits into a consistent line of the Court of Cassation. Already, in a judgment of 30 November 2016 (No. 15-25.225), the Court had held that the civil judge cannot, on the basis of neighbourhood disturbances, order the demolition of a classified installation authorised by the administration. The only way is to challenge the authorisation before the administrative judge.

On the other hand, the Court of Cassation also clarified, in a judgment of 6 July 2017 (No. 16-19.297), that when the installation is not classified (for example, a low-power mobile phone mast), the civil judge remains competent to order demolition on the basis of neighbourhood disturbances, without waiting for the annulment of the permission. What few people know is that the classification as a classified installation changes everything. For wind turbines, which are always classified (item 2980 of the ICPE nomenclature), the rule is clear: no judicial demolition without prior administrative annulment.

The trend is therefore towards a strengthening of the separation of powers, but with a safety valve: Article L. 480-13 allows the civil judge to intervene once the permission has been annulled. In the future, we can expect residents to multiply administrative appeals, possibly combining them with subsidiary judicial actions, to maximise their chances.

Summary and next steps

To help you see clearly, here is a checklist of actions to take if you are faced with a troublesome wind turbine or classified installation:

1. Identify whether the installation is classified as ICPE. Ask the prefecture or consult the register of classified installations. If yes, you will need to go through the administrative judge to challenge the authorisation.
2. Check whether the planning permission has been annulled. Consult the administrative court's website or ask a lawyer. If yes, you can act before the civil judge within two years.
3. Gather evidence of nuisances (bailiff's reports, neighbour statements, noise measurements).
4. Consult a lawyer to determine the strategy: administrative appeal alone, or combination with a judicial action.
5. Act quickly: the time limits for challenging the permission are two months, and the action for demolition after annulment is two years.

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