Planning Infraction: An Illegal Plan Does Not Justify a Conviction

Imagine: you are the owner of a beautiful plot in Saumur, facing the Loire. You decide to raise your land by a few metres to create a garden. Nothing exceptional, you think. Yet, one day, you receive a summons to the criminal court: you are prosecuted for violating a planning plan. But which plan? No one has ever heard of such a document in your area. This absurd situation is exactly what happened to a property owner in 1977, and which the Court of Cassation decided.

The question every property owner asks: can you be convicted for an offence based on a non-existent or illegal legal basis? The answer, fortunately, is no. In this judgment of 19 January 1977, the Criminal Chamber of the Court of Cassation quashed the conviction of a property owner on the ground that the planning plan supposedly prohibiting land raising had not been legally established. In short, no valid plan, no offence.

But what exactly does this change for you, whether you are a property owner in Trélazé or elsewhere? This decision, almost 50 years old, remains highly relevant. It establishes a fundamental principle: any prosecution in planning matters must be based on an enforceable planning document. Without this, the administration and the courts cannot hold anything against you. Analysis.

The facts: a story like many that happen every day

Mr X, owner of a plot located within the application area of a planning plan (a document regulating constructions and modifications of the land), decides to carry out a land raising – that is, he raises the level of his land by adding soil. For him, it is a simple landscaping improvement. For the Public Prosecutor, it is an offence against planning legislation.

Prosecuted before the criminal court, Mr X is convicted at first instance and then on appeal. The Angers Court of Appeal, by a judgment of 26 November 1975, found him guilty of having, within the application area of a planning plan, carried out a land raising without authorisation. But the problem is: Mr X contests the very existence of this planning plan. He argues that no plan has been regularly approved and made enforceable against third parties. The planning authority had indeed written to the prosecutor, by a letter of 2 April, that a plan had been adopted on 30 June… but this plan had never been published or brought into force.

The case goes up to the Court of Cassation. The property owner argues that the lower courts did not establish the existence of an enforceable planning plan, a necessary condition for there to be an offence. The High Court agrees: it quashes the appeal judgment, holding that the Angers court did not verify whether the planning plan was legally applicable. In other words, one cannot convict someone on the basis of a document that does not legally exist.

The reasoning of the court — decoded

The core of this decision is summed up in one sentence: for an offence against planning legislation to be constituted, the planning plan serving as the basis for the prosecution must itself be legal and enforceable. The Court of Cassation, in its judgment, criticises the Court of Appeal for not having "established the existence of a planning plan which constitutes the necessary legal basis for the alleged offence". In plain language: if the document supposed to prohibit the raising is not valid, there is no offence.

The legal basis here is the former Article 1 of the Decree of 31 December 1958 (now codified in the Planning Code) which required authorisation for levelling works in areas covered by a planning plan. But the Court reminds that a planning plan is only enforceable against third parties after it has been approved and published. As long as these formalities have not been completed, the plan does not legally exist.

However, note: the Court does not say that Mr X had the right to modify his land. It simply says that the lower courts should have verified the legal existence of the plan. This is confirmation of a constant principle: in criminal matters, the incriminating text must be certain. What few people know is that this requirement also applies to planning documents: they must be enforceable to support a conviction.

undefined, I have come across cases where property owners were prosecuted on the basis of PLUs (local planning plans) annulled by the administrative court, or of communal maps that had not been approved. This 1977 decision is still cited today to have abusive prosecutions quashed.

What this changes for you — concretely

This decision has very concrete practical implications, depending on your profile.

Landlord: If you are planning earthworks or land raising (for example, to create a parking platform on a plot in Trélazé), first check that the applicable planning document (PLU, communal map) is actually in force. A plan under development, even if "adopted", is not enforceable against you. You can therefore carry out the works without criminal risk, unless other rules (such as the Environmental Code) apply.

Tenant: You are not directly concerned by this decision, but if your landlord carries out irregular works, you may suffer nuisance. You can ask him to justify the conformity of the works with the enforceable planning documents.

Purchaser: Before buying land, ask the seller for a certificate of conformity for previous works. If land raisings were carried out without authorisation, but the planning plan was not enforceable at the time, you have nothing to fear criminally. But be careful: if the plan has become enforceable since, you could be required to restore the premises.

Co-owner: If your co-ownership is considering levelling works in the common parts (for example, to lay out a courtyard), ensure that the planning plan is actually in force. A lack of enforceability could expose you to prosecution.

Concrete example: a property owner in Saumur who raises his land by 50 cm without authorisation risks a fine of €1,200 to €6,000 (Article L.480-4 of the Planning Code), or even restoration of the site. But if the planning plan is not enforceable, the prosecution is void. Saving: at least €1,200.

Four tips to avoid this type of dispute

• Consult the applicable planning document: Before any land modification works (raising, excavation), go to the town hall or the commune's website to check the PLU or communal map in force. Check its date of approval and publication.
• Apply for a planning certificate: This document issued by the town hall tells you the rules applicable to your plot. It is enforceable for 18 months. If the certificate does not mention any prohibition, you can proceed with complete safety.
• Use an architect or surveyor: For major works, a professional will help you comply with the rules and prepare the necessary authorisation applications (planning permit, prior declaration).
• Keep evidence of enforceability: If you are prosecuted, you can demonstrate that the planning plan was not in force at the time of the facts. Keep copies of planning certificates, town hall correspondence, etc.

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Further analysis: related case law and developments

This 1977 decision is part of a consistent line of the Court of Cassation. One can cite a judgment of 3 March 1981 (no. 79-93.456) which recalls that planning offences must be strictly interpreted: in case of doubt about the enforceability of a document, the benefit of the doubt goes to the accused.

More recently, the Criminal Chamber held on 12 December 2018 (no. 17-86.867) that the failure to publish a PLU in the RAA (collection of administrative acts) renders it unenforceable against third parties, and therefore unusable to support a prosecution. The trend of the courts is therefore clear: rigour is required regarding the enforceability of planning documents.

For the future, with the digitalisation of PLUs (intermunicipal PLU, PLUi), property owners will be able to check enforceability online more easily. But be careful: simply making available on the internet is not enough; an official publication is required.

Checklist before acting

1. Which planning document covers my plot? Inquire at the town hall or on the planning geoportal.
2. Is this document enforceable? Check its date of approval and publication. A plan adopted but not published does not bind you.
3. Are my works subject to authorisation? A land raising of more than 2 metres in height or more than 100 m² requires a planning permit. Below that, a prior declaration may suffice.
4. Do I have proof of enforceability? Keep the planning certificate or the town hall's response to your request.
5. What if I am prosecuted? Immediately contact a lawyer specialised in property law. He or she can verify the enforceability of the plan and, if necessary, request the nullity of the 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 →