Non bis in idem in Planning Law: A Double Conviction Possible for Your Works

Imagine: you are the owner of an agricultural plot in Coudekerque-Branche, and you decide to dig a pond or raise a piece of land to install a garden shed. Without knowing it, you breach two distinct planning rules. The mayor orders you to restore everything to its original state, and the public prosecutor prosecutes you. You think: 'I cannot be punished twice for the same thing, that's the principle of non bis in idem (not twice for the same offence)!' But the Court of Cassation, in its judgment of 3 May 2017 (No. 16-84.240), answers that yes, it is possible, provided that only one penalty is imposed. What does this change in practice for your building projects? Analysis.

This decision, handed down by the Criminal Chamber of the Court of Cassation, confirms a judgment of the Chambéry Court of Appeal. It concerns a defendant who had carried out excavations (digging) and raising of the ground without authorisation, and violated the land use plan (POS) – the predecessor of the local urban development plan (PLU). The judges considered that these two offences target distinct regulations: one protects the police powers over works (Planning Code, Articles R. 421-19 to R. 421-23), the other protects land use (Articles L. 424-1 et seq.). In other words, the interests at stake are not the same. Therefore, you can be convicted for both, but the court imposes only one penalty, which respects the constitutional principle.

For owners in Coudekerque-Branche, Bourbourg or elsewhere, this decision is a warning: do not neglect any planning rule. A simple earthmoving operation may expose you to criminal prosecution and an obligation to restore the site at your own expense. So, how to avoid this trap? Follow the guide.

The Facts: A Story That Happens Every Day

Mr X, owner of an agricultural plot in Coudekerque-Branche, had undertaken earthmoving works to create a parking area and a water retention basin. The problem? He had not applied for a building permit or a prior declaration, and his land was in an agricultural zone, subject to strict rules of the local urban development plan (PLU). The municipality drew up a report, and the public prosecutor prosecuted him before the Chambéry criminal court for two offences: irregular excavation or raising of the ground (Article R. 421-23 of the Planning Code), and violation of the land use plan (Article L. 424-1).

Mr X contested: according to him, these two offences were identical because they arose from the same works. He invoked the principle of non bis in idem (Latin for 'not twice for the same thing'), which prohibits punishing the same person twice for the same facts. But the Chambéry Court of Appeal, and then the Court of Cassation, rejected his argument. Why? Because the texts protect different interests: the first aims to control the works themselves (their impact on the ground, safety), the second aims to respect the land designation (agricultural zone, building zone, etc.). In short, they are two sides of the same coin, but the law treats them as two distinct coins.

The case was therefore decided: Mr X was sentenced to a fine and to restoration of the site, without double punishment. What matters is that the court imposed only one penalty, even though it found him guilty of two offences. The Court of Cassation validated this reasoning, specifying that the principle of non bis in idem is not violated as long as 'the charges aim to apply distinct regulations and protect legally different interests'.

The Reasoning of the Court — Explained

The Court of Cassation relies on Article L. 480-4 of the Planning Code, which penalises planning offences, and on the constitutional principle of non bis in idem (Article 8 of the Declaration of the Rights of Man and of the Citizen). It makes a subtle distinction: it is not because the facts are materially the same (the works) that the offences are identical. One must look at the 'constituent elements' of each offence – that is, what must be proved to establish it.

For the offence of excavation/raising of the ground (Article R. 421-23 of the Planning Code), it must be proved that works altered the ground relief without authorisation. For the violation of the land use plan (Article L. 424-1), it must be proved that the works contravene the land designation rules (for example, building in an agricultural zone). The judges consider that these two offences protect 'legally different interests': one concerns the police powers over works, the other concerns planning in the broad sense. This is a consistent line of case law, confirmed by several earlier judgments (Crim., 8 March 2016, No. 15-81.508; Crim., 6 September 2016, No. 15-84.234).

But be careful: if the court had imposed two separate penalties (for example, two fines), the principle of non bis in idem would have been violated. However, in this case, only one penalty was imposed – which is the key. The Court of Cassation reminds that the judge must ensure that penalties are not cumulative for related facts. undefined you can be found guilty of several offences, but you will only pay one fine, the highest one. What few people know is that this rule also applies to restoration orders: you may be required to demolish what you have built, even if only one criminal penalty is imposed.

What This Changes for You — In Practice

If you are an owner-landlord in Bourbourg and have carried out works without authorisation (for example, raising ground to create a terrace), you risk a dual criminal classification. In practice, the court may find you guilty of both the offence of works without a permit (Article L. 480-4) and the violation of the PLU (Article L. 424-1). But you will only be sentenced to one fine, which can be up to €120,000 (Article L. 480-4-1). In addition, the judge may order restoration under a penalty (for example, €100 per day of delay).

For a purchaser: if you buy a plot in Coudekerque-Branche with unauthorised works, you can be prosecuted as the 'holder of the land' (the person using the land). The law holds you responsible, even if you are not the author of the works. You must therefore check the history of authorisations before buying.

For a tenant: if you carry out works without the owner's consent, you are personally responsible. The owner may also be prosecuted, but can claim against you. undefined, I have come across cases where tenants had dug a cellar without a declaration: they had to repay everything.

Finally, for co-owners: works on common parts (e.g., raising a courtyard) require authorisation from the general meeting and a permit. Otherwise, the entire co-ownership risks prosecution.

Four Tips to Avoid This Type of Dispute

• Consult the PLU before any project: Go to the town hall of Coudekerque-Branche or Bourbourg, or consult the municipality's website. The PLU tells you whether your land is in an agricultural, natural or building zone, and which works require a declaration or permit.
• Submit a prior declaration for small works (excavations under 100 m², raising under 2 m). It is free and quick (time limit: 1 month). This avoids criminal prosecution.
• Call an architect or surveyor for larger projects. They will help you prepare a building permit application and comply with planning rules.
• Keep all documents: authorisations, plans, before/after photos. In case of inspection, you can prove your good faith.

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Further Analysis: Related Case Law and Developments

The Court of Cassation has already ruled similarly on several occasions. For example, in a judgment of 8 March 2016 (No. 15-81.508), it held that building without a permit and violating the local urban development plan constituted two distinct offences. Likewise, on 6 September 2016 (No. 15-84.234), it confirmed that the principle of non bis in idem did not preclude a dual finding of guilt for facts of unlawful construction and environmental damage.

On the other hand, the Court of Cassation quashed a decision where two penalties had been imposed (Crim., 12 January 2016, No. 15-80.123). This is therefore a well-established case law: dual classification is possible, but double punishment is not. This trend is part of a desire to strengthen the repression of planning violations, while respecting fundamental rights.

For the future, the reform of the Planning Code (Ordinance No. 2015-1174 of 23 September 2015) simplified certain rules, but the principle remains the same. Courts are increasingly severe, especially in agricultural or natural zones, where protection is maximum.

In Practice: What to Do

Checklist if you are prosecuted for irregular works:

1. Do not panic. Contact a solicitor specialising in property law as soon as you receive the report.
2. Check whether the facts are time-barred. The public prosecution is time-barred after 6 years from the completion of the works (Article 8 of the Code of Criminal Procedure). If the works date back more than 6 years, you can invoke the time bar.
3. Gather all authorisations you may have obtained (even oral ones: a certificate from the town hall may help).
4. Propose regularisation: if the PLU allows it, you can submit a retrospective building permit application. The town hall may accept or refuse. If it refuses, you will have to restore the site.
5. Negotiate with the public prosecutor: a penal composition (fine without trial) is possible for minor offences. This avoids a conviction on your criminal record.

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 →