Planning permission violated: the offence is constituted even after regularisation (Crim. Cass., 16 Jan. 2018)

Imagine: you are a landowner in Parentis-en-Born, you have obtained planning permission for your land, and you build two retaining walls. But the planning department comes and notes that these walls do not comply with the regulatory distance of one metre. You think: no panic, I will regularise before the works are finished. Wrong! The Court of Cassation, in its judgment of 16 January 2018 (no. 17-81.157), has ruled: the offence is constituted as soon as the report is drawn up, irrespective of any subsequent regularisation. In other words, you cannot remedy a breach mid-construction. This decision, handed down in criminal matters, reminds us of a crucial rule in French planning law: strict compliance with the planning permission, on pain of prosecution.

The facts: an everyday story

Mr X, owner of a plot in Parentis-en-Born, obtains planning permission to carry out earthworks and build retaining walls. The permission stipulates that the walls must be at least one metre from the boundary of the neighbouring plot. However, during an inspection, planning officers draw up an offence report: they note that the two walls built are on the boundary, thus violating the distance rule. Mr X is prosecuted before the criminal court. In his defence, he argues that, before completion of the works, he altered the position of the walls to comply with the permission. According to him, the regularisation extinguishes the offence. The criminal court acquits Mr X, upheld by the court of appeal. But the public prosecutor appeals to the Court of Cassation. The Court of Cassation quashes the appeal judgment: it recalls that the planning offence is constituted at the time the report is drawn up. It does not matter that the works were subsequently regularised; the violation is complete. The case is referred to another court of appeal for a decision on the merits.

The reasoning of the court — analysed

The Court of Cassation relies on Article L. 480-4 of the French Planning Code (which penalises breaches of planning rules) and on the principle that the actus reus of the offence is assessed at the time it is recorded by the authorities. In short, the judge does not look at whether everything is compliant at the end of the works: he looks at what existed when the report was drawn up. The lower courts had considered that regularisation before completion of the works was a ground for acquittal. But the Court of Cassation disagrees: the text provides no exception for works regularised during execution. This reasoning confirms settled case law (Crim. Cass., 20 Mar. 2001, no. 00-84.358). It is therefore a confirmation, not a reversal. Mr X's arguments (good faith, prompt regularisation) are dismissed: in French criminal planning law, the mental element is not always required, and regularisation does not erase an already constituted offence. However, note: this decision only concerns offences recorded before completion; if the report is drawn up after, the situation is different.

What this means for you — practically

If you own a building plot in Saint-Paul-lès-Dax, you must comply strictly with your planning permission from the very start of the works. What happens if you build in breach of the rules? A report can be drawn up at any time by municipal or state officers. Once that report is issued, you are in breach, even if you rectify matters before completion. The consequences? A fine of up to €120,000 (Article L. 480-4 of the French Planning Code), or even demolition of the non-compliant structures (Article L. 480-5). For a buyer, this is a risk to consider in the sale agreement: if the seller has been the subject of a report, the warranty for hidden defects may apply. For a tenant, the breach may affect safety or enjoyment of the property. undefined, I have encountered cases where landowners thought they were doing the right thing by regularising, but were convicted regardless. If you are in this situation, you should consult a lawyer solicitor without delay to assess your options (e.g., challenging the validity of the report).

Four tips to avoid this type of dispute

• Check your planning permission before starting any works. Verify the distances, heights, required materials. Call in a surveyor if necessary.
• Photograph the site at each key stage. In the event of an inspection, you can prove that you followed the permission, or show that the report is wrong.
• Do not rely on regularisation to avoid prosecution. As the Court of Cassation says, the offence is complete at the time of the report. Better to anticipate.
• If in doubt, apply for a modified permission before starting works. If you plan a change, seek prior approval from the authorities.

Further reading: related case law and developments

This judgment is part of a consistent line: the Court of Cassation has already ruled that subsequent regularisation does not extinguish the criminal proceedings (Crim. Cass., 20 Mar. 2001, cited above). However, a decision of the Conseil d'État (CE, 27 Jul. 2015, no. 372195) has accepted that regularisation may be taken into account to avoid demolition, if it occurs before judgment. This means that, on the criminal side, the offence remains, but the civil judge may be more lenient. The courts therefore tend to penalise the initial breach firmly, while leaving the door open for enforcement of remedial measures. For the future, landowners must be vigilant: inspections are increasing, especially in high-demand areas like the Landes.

Summary and next steps

FAQ:

• Question: What should I do if I receive an offence report? Answer: Do not panic, but consult a solicitor. Do not regularise hastily without advice. The time limit to challenge is 10 days for a minor offence, 30 days for a more serious offence.
• Question: Can I negotiate a settlement with the authorities? Answer: Yes, in some cases the mayor may offer a penal transaction before prosecution (fixed fine). But this does not erase the offence.
• Question: What are the risks for a buyer? Answer: If the seller has been the subject of a report, the buyer may face demolition proceedings. They should require a warranty in the sale deed.
• Question: Can the judge order demolition even after regularisation? Answer: Yes, if regularisation occurred after the report, the judge may consider that the initial breach justifies demolition. But it depends on the circumstances.
• Question: How much does a procedure cost? Answer: Solicitor's fees range from €1,500 to €5,000 depending on complexity. An initial consultation (€45 with Maître Zakine) can help assess the risk.

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