Penalty or Civil Remedy? When Planning Enforcement Becomes a Criminal Sanction

Imagine this: you own a house in Saint-Paul-lès-Dax, and you have built an extension to your terrace without planning permission. Your neighbour takes you to court, and the criminal court orders you to restore the premises to their former state within one year, subject to a periodic penalty payment. You pay the fine, but you wonder: is this compliance order merely a civil remedy (like compensation for damage), or is it a genuine penalty? The answer has enormous consequences for your rights, particularly regarding the possibility of appealing or requesting an extension of time.

This is precisely the question decided by the Court of Cassation in a famous judgment of 16 October 1984 (No. 83-94.574). In short, the judges held: the compliance order provided for in Article L. 480-5 of the Town Planning Code, even if it resembles a civil remedy, is in reality a penalty. As such, it cannot be enforced during the period for lodging an appeal to the Court of Cassation. In other words, as long as an appeal is possible, the compulsory works may be suspended.

This decision, nearly 40 years old, remains an absolute reference for all planning disputes. Whether you are a property owner, tenant, developer, or co-owner, understanding this distinction is crucial. In this article, I explain everything in plain language, with concrete examples from the Mont-de-Marsan area. Ready? Let's go.

The Facts: A Story Like Many Others

Mr X, a property owner in Saint-Paul-lès-Dax, carried out construction work that did not comply with the local town planning plan (PLU). More specifically, he built an annex that did not meet height and siting rules. The public prosecutor prosecuted him for offences under Articles L. 160-1 and L. 480-4 of the Town Planning Code (now codified differently, but the spirit remains the same). The Nîmes Criminal Court convicted him: a fine, and a compliance order requiring restoration of the premises to their former state within one year, subject to a periodic penalty payment.

Mr X appealed. The Nîmes Court of Appeal, in a judgment of 16 September 1983, upheld the conviction but granted an additional one-year period to carry out the demolition/restoration works, still subject to a periodic penalty payment. Dissatisfied, Mr X appealed to the Court of Cassation. His argument was as follows: the compliance order issued by the criminal court is a penalty, so it cannot be enforced while an appeal to the Court of Cassation is pending or until the appeal period has expired (Article 571 of the Code of Criminal Procedure). However, the Court of Appeal had set a one-year period that started to run immediately, without waiting for the outcome of the appeal.

The Court of Cassation had to decide: is the compliance order a civil remedy (allowing immediate enforcement) or a penalty (with a stay of execution)?

The Court's Reasoning — Explained

The Court of Cassation followed Mr X's reasoning. In its judgment, it clearly states: "Although the compliance order in respect of premises, provided for by Article L. 480-5 of the Town Planning Code and which may be issued by a court that imposes a conviction for an offence under Articles L. 160-1 and L. 480-4 of the said Code, presents itself as a civil remedy, it nevertheless also constitutes a penalty, and as such falls outside the scope of provisions unrelated to criminal law and criminal procedure."

In plain terms, the criminal court may order the restoration of the premises, but this measure has a dual nature. On the one hand, it remedies the planning breach (its civil side). On the other hand, it punishes the offender by requiring him to demolish or modify what he has built unlawfully (its criminal side). And because it is imposed in the context of criminal proceedings, it must comply with the safeguards of criminal law, including the suspension of enforcement during the appeal process.

What few people know is that this decision was handed down at a time when the boundary between civil and criminal law was less clear. Today, it is firmly established. The judges therefore quashed the Nîmes Court of Appeal's judgment, holding that the one-year period granted to Mr X could only start to run after the expiry of the appeal period or the dismissal of the appeal. undefined that as long as an appeal is possible, the periodic penalty payment cannot accrue.

However, note: this decision does not challenge the court's power to order compliance, but it strictly regulates its enforcement. For property owners, this is a valuable protection: you can contest the conviction without risk of the compulsory works starting immediately.

What This Means for You — in Practice

So, how does this affect you, reading this article from Mont-de-Marsan or Saint-Paul-lès-Dax? Let's look at it by profile.

Landlord: Have you let a property with a non-compliant extension? If you are criminally prosecuted, the court may order you to restore the premises to their former state. But thanks to this judgment, you can appeal or lodge an appeal to the Court of Cassation without the periodic penalty payment starting to run during the appeal period. For example, if you are ordered to demolish an illegal conservatory in Mont-de-Marsan, you have a reprieve: time for the justice system to reach a final decision.

Tenant: You are generally not the target of the offence, but if you occupy an unhealthy or non-compliant dwelling, be aware that the compliance order against the landlord may take time. You can use this judgment to argue that the landlord cannot invoke urgency to evict you or increase the rent.

Purchaser: Are you buying a property with unauthorised works? Be cautious: the seller may be ordered to regularise them, but if an appeal is pending, the works may be delayed. Always check whether criminal proceedings are ongoing.

Co-owner: An illegal construction in your co-ownership? The managing agent may take action, but the compliance order will be suspended during appeals. Example: an owner in Saint-Paul-lès-Dax builds a rooftop terrace without permission. The managing agent sues, the court orders demolition subject to a periodic penalty payment of €100 per day of delay. Thanks to this judgment, if the owner appeals to the Court of Cassation, the periodic penalty payment does not accrue during the appeal. This can last for months.

If you are in this situation, you should consult a lawyer promptly to determine whether the appeal period has expired or not. undefined, I have seen cases where property owners gained valuable time thanks to this precedent.

Four Tips to Avoid This Type of Dispute

• Obtain all permits before building, even for a small extension. A terrace or garden shed may require prior notification. In Mont-de-Marsan, the town planning department at the town hall is responsive: do not neglect this step.
• If you are prosecuted, do not delay in lodging an appeal. From notification of the judgment, you have 10 days to appeal, and 5 days for an appeal to the Court of Cassation. Every day counts.
• Document all steps. Photos, correspondence, permits: keep everything. This can serve to prove your good faith or the absence of harm.
• Consult a lawyer lawyer at the first sign of trouble. A simple letter from the administration can lead to a criminal complaint. Better to anticipate than to suffer.

Further Reading: Related Case Law and Developments

This 1984 decision has been confirmed several times. For example, the Court of Cassation held (Crim., 12 March 1991, No. 90-81.678) that the compliance order, even if issued by the criminal court, remains a penalty within the meaning of Article 132-1 of the Criminal Code. More recently, in a judgment of 8 November 2016 (No. 15-85.783), it clarified that the periodic penalty payment associated with the compliance order can only start to run from the date on which the decision becomes final.

The trend in the courts is therefore consistent: they protect the rights of the defence by treating the compliance order as penal. However, note: since 2015, the mayor's powers in planning enforcement have been strengthened (ALUR law), which may accelerate parallel administrative procedures. But for criminal matters, the principle remains unchanged.

Checklist Before Acting

FAQ: 4 Key Questions

1. Can I be ordered to comply without a fine? Yes, the court may order both cumulatively.
2. Does the periodic penalty payment accrue during my appeal to the Court of Cassation? No, according to this judgment, the periodic penalty payment is suspended until the final decision.
3. What if the court sets too short a deadline? You can request an extension by citing technical difficulties (e.g., complex demolition in Saint-Paul-lès-Dax).
4. What if I sell the property before compliance? The conviction is personal, but the compliance order may be passed to the purchaser if noted in the register. Be cautious.

What to do if you are prosecuted:

• Consult a lawyer immediately.
• Check whether the judgment is final (no pending appeal).
• If you appeal, request a stay of execution.
• Prepare a realistic compliance plan.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

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