Planning Permission: When the Civil Court is Not Competent to Condemn the Municipality

You live in Versailles, Rue des Réservoirs, when suddenly your neighbour undertakes colossal works: a 50 m² extension, with a bird's-eye view of your garden. You check the planning permission displayed on the site: signed by the mayor. But this permission, you are convinced, violates the local urban plan (PLU): it exceeds the authorised height, encroaches on legal distances. You want to sue the municipality to obtain compensation for your loss of view and sunlight. Which court should you apply to? The civil court, which deals with property law and civil liability? Or the administrative court, specialist in acts of town halls? The question is simple, but the answer has long divided the courts. A judgment of the Court of Cassation of 9 March 2022 (No. 19-24.594) has settled the matter clearly: it is the administrative court that has sole jurisdiction. And this is the case even if you base your action on Article 544 of the Civil Code (the right of property) or Article 1240 (liability for fault). The message is clear: when the damage arises from an administrative public service – here, the granting of a planning permission – public law applies, and therefore the administrative court. A lesson to be learned by any owner, buyer or neighbour who would wish to take the law into their own hands. Because getting the wrong court means losing time, money and sometimes the right to act. Analysis.

The Facts: A Story That Happens Every Day

Imagine a property developer, L Construction Ltd, which obtains from the municipality of Boulogne-Billancourt a planning permission for a five-storey building. Local residents, owners of a semi-detached house, contest this permission: according to them, it disregards the rules on height and building lines (distance between buildings) of the PLU. They bring legal proceedings, not against the permission itself – they do not seek its annulment – but against the municipality, on the basis of civil liability. Their argument: the municipality committed a fault by granting an illegal permission, causing them damage (loss of light, depreciation of their property). Before the High Court (now the Judicial Court) of Paris, they claim damages. The municipality raises the lack of jurisdiction of the civil court: 'This dispute falls within public law, because the permission is an administrative act,' it pleads. The residents retort: 'We are not criticising the legality of the permission, but the fault of the municipality in granting it. And our action is based on the Civil Code, not on public law.' The Paris Court of Appeal rules in their favour in 2019: it holds that while the litigation concerning the legality of permissions does indeed fall within the administrative court, the claimants base their action on Article 544 (right of property) and the former Article 1382 (liability for fault, now Article 1240). Therefore, according to the court, the civil court has jurisdiction. The municipality appeals to the Court of Cassation. And the Court of Cassation quashes the appeal judgment, with reference to the law of 16-24 August 1790 and the decree of 16 Fructidor Year III – foundational texts on the separation of administrative and judicial authorities. For the High Court, as soon as the damage is attributed to an administrative public service – here, the granting of a planning permission – liability is subject to public law and falls within the jurisdiction of the administrative court, unless there is a contrary legislative provision. It does not matter that the claimant invokes the Civil Code: the nature of the act in question (administrative) imposes the jurisdiction of the administrative court.

The Reasoning of the Court — Analysed

To understand the judgment, we must return to a fundamental principle of French law: the separation of administrative and judicial authorities. Since the Revolution, the laws of 16-24 August 1790 and the decree of 16 Fructidor Year III provide that 'judicial functions are distinct and shall remain always separate from administrative functions'. Concretely, the civil court (Judicial Court, Court of Appeal) cannot deal with matters involving the administration (State, municipalities, departments, regions, public establishments) in the exercise of its public service duties. These matters fall within the jurisdiction of the administrative court (Administrative Court, Administrative Court of Appeal, Council of State). The question in this case was: does the granting of a planning permission by a municipality fall within the administrative public service? The answer is yes, unequivocally. The planning permission is an individual administrative act authorising a construction. It is granted by the mayor on behalf of the municipality, within the framework of its public authority prerogatives. Even if the residents do not challenge the legality of the permission, but the liability of the municipality for having granted it, the civil court cannot rule on the fault of the municipality without first assessing the legality of the permission. However, this is exactly what the Court of Appeal did: in order to find that the municipality had committed a fault, it had to verify whether the permission was illegal. But this verification falls within the administrative court, which alone has jurisdiction to assess the legality of an administrative act. The Court of Cassation firmly reminds us: 'unless there are contrary legislative provisions, the liability that may fall on the State or other public law legal persons, by reason of damage attributed to their administrative public services, is subject to a regime of public law and falls, consequently, within the jurisdiction of the administrative court'. In other words, the nature of the act (administrative) determines jurisdiction, not the legal basis invoked by the claimant. This is a classic solution, but it puts an end to a recurring temptation for litigants: to circumvent the administrative court by dressing their action in civil liability. The Court of Appeal had succumbed to this temptation; the Court of Cassation sets it back on the right path.

What This Changes for You — Concretely

If you are the owner of a property in Versailles, and your neighbour is building under a permission you consider illegal, you have two options: either challenge the permission itself before the administrative court (within two months of its display), or claim compensation for your damage from the municipality, but also before the administrative court. Since the judgment of 9 March 2022, there is no longer any doubt: you cannot go before the civil court, even by invoking your right of property (Article 544 of the Civil Code) or the fault of the municipality (Article 1240). This has important practical consequences. For example, if you live in Boulogne-Billancourt and suffer a loss in value of your flat of €50,000 due to a construction that is too high, you must bring the matter before the Administrative Court of Paris, not the Judicial Court. The time limits are different: the appeal against the permission itself must be brought within two months of its display, while the action for liability against the municipality is subject to a four-year limitation period (prescription quadriennale) running from the first day of the year following the year in which the damage became known. The rules of evidence also differ: before the administrative court, proceedings are in writing, expert reports are rarer, and the burden of proof may be heavier for the claimant. What you should remember: if your damage stems from an administrative act (planning permission, planning certificate, expropriation decision), always go to the administrative court. A lawyer specialising in public property law can advise you on the most appropriate strategy: challenge the permission to obtain its annulment, or sue the municipality in liability to obtain damages, or combine both. But beware: if you apply to the wrong court, the civil court will declare itself incompetent, and the time lost could cause you to lose the benefit of the time limits for appeal.

Four Tips to Avoid This Type of Dispute

• Systematically check the display of the planning permission on your neighbour's property. As soon as work begins, identify the regulatory notice: it must indicate the date of issue, the permission number, and the characteristics of the project. Note the start date of display: this is the starting point of the two-month period to challenge the permission before the administrative court.
• Consult the PLU of your municipality before any project. Whether you are in Versailles or Boulogne-Billancourt, the local urban plan sets out the rules on height, distance, and site coverage. A quick glance at the regulations can save you from illegal construction or a neighbourhood dispute.
• If in doubt, send a recorded delivery letter to the town hall. Request a copy of the planning permission and the application file. The municipality is obliged to provide them to you (Article L. 213-1 of the Urban Planning Code). Keep these documents safe: they will serve as evidence in case of a challenge.
• Do not delay in taking action. The time limit for a judicial appeal against a planning permission is two months from the first day of display. Once this period has passed, you can no longer seek the annulment of the permission. However, the action for liability against the municipality is subject to a four-year limitation period. But beware: if you sue the municipality after the completion of the works, the damage is often more difficult to assess and remedy.

Further Reading: Related Case Law and Developments

This judgment is part of a consistent line of case law. Already in 2018, the Council of State had held (CE, 13 June 2018, No. 408591) that the liability of a municipality for fault in the processing of a planning permission falls within the jurisdiction of the administrative court. The Court of Cassation here confirms this division of competences. An earlier decision of the Court of Cassation (Civ. 1st, 12 October 2011, No. 10-24.142) had already upheld administrative jurisdiction for an action for liability against the State arising from an erroneous planning certificate. The trend is therefore clear: the civil court cannot hear actions for liability brought against a public body for acts falling within its public service mission, even if the claimant invokes the general law of civil liability. In the future, it can be expected that this rule will be extended to other individual administrative acts (demolition permits, planning certificates, decisions on occupation of the public domain). For owners and property professionals, this means that the nature of the act in question must be systematically identified before bringing proceedings. A preliminary analysis by a lawyer specialising in property law and public law is strongly recommended.

Checklist Before Taking Action

• Q: Can I sue the municipality before the Judicial Court for an illegal planning permission?
  A: No. Since the judgment of 9 March 2022, jurisdiction is exclusively administrative, even if you base your action on the Civil Code.
• Q: What is the time limit to challenge a planning permission before the administrative court?
  A: Two months from the first day of display of the permission on the site. After this period, the permission becomes final and can no longer be challenged.
• Q: What if I only want damages, without annulling the permission?
  A: The action for liability against the municipality also falls within the administrative court. You have a time limit of four years (prescription quadriennale) from the date the damage became known.
• Q: What happens if I apply to the wrong court?
  A: The civil court will declare itself incompetent. You can then apply to the administrative court, but the time lost may cause you to lose the time limits for appeal. It is better to consult a lawyer before acting.
• Q: Does this decision apply to other acts of town halls (planning certificate, demolition permit)?
  A: Yes, the same principle applies to all individual administrative acts issued within the framework of an administrative public service.

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 →