Planning Permission: The Contractor Also Liable for Non-Compliance

Imagine the scene: in Aubagne, a couple entrusts a contractor with building their villa. The planning permission specifies a roof of Roman tiles, but to save money, the contractor proposes a flat bitumen roof. The owner agrees. Result? The town council issues a penalty, and the contractor finds himself in court. Who is liable? The question every owner asks: can I modify the project without reapplying for planning permission? And can the contractor exonerate himself by saying the owner agreed? The answer from the Court of Cassation is clear: the contractor is as guilty as the owner. Explanations.

The facts: a story that happens every day

In 1978, Mr. Jean Yves, owner in Aubagne, obtains planning permission for a detached house. He entrusts the work to a contractor. The permission includes precise plans: dimensions, materials, external appearance. But during the construction, the contractor proposes a modification: the roof will be different, the windows smaller. Mr. Yves agrees without applying for an amending permission. The work is completed, and the building does not comply with the permission. The public prosecutor prosecutes both the owner and the contractor for infringement of Article L. 421-1 of the French Urban Planning Code (the obligation to obtain planning permission before any construction). The criminal court fines the contractor 750 francs (about €114). The contractor appeals: he argues that he merely followed the owner's orders, and that liability for the offence lies solely with the project owner. The Court of Appeal finds him guilty. The contractor appeals to the Court of Cassation. The Court of Cassation dismisses his appeal on 2 June 1981.

The reasoning of the court — dissected

The judges of the Court of Cassation (the highest French judicial court) applied a simple principle: anyone who participates in a construction that does not comply with planning permission commits an offence. Article L. 421-1 of the Urban Planning Code (which requires planning permission for any construction) is breached as soon as the building deviates from the permission. The contractor is a professional: he knows the planning rules. He cannot hide behind the owner's agreement. By agreeing to build differently, he committed a fault. The Court rejected the contractor's argument that he was merely an executor. It considered that his professional status obliged him to refuse work that did not comply with the permission. This decision is a reminder of the criminal liability (punishable by a fine, or even imprisonment) of the contractor, on the same basis as the owner. It confirms consistent case law: the builder is an active participant in the offence, not a mere victim of the client's orders. The case is clear: the contractor cannot plead ignorance or delegation.

What this means for you — in practical terms

For a landlord-owner in Allauch: if you entrust work to a contractor and accept modifications without an amending permission, you are both liable. The contractor may be ordered to pay a fine, but also damages if a neighbour suffers harm (loss of sunlight, obstructed view). For example, a roof modification may reduce a neighbour's view: that neighbour can sue you. For a tenant: if your landlord carries out work that does not comply with planning permission, you are not liable, but you may suffer the consequences (disturbance of enjoyment, work to restore the property). For a co-owner: if the management company hires a contractor to carry out work modifying the external appearance without an amending permission, the contractor is as liable as the management company. In practical terms, if you are a contractor, you must refuse any unauthorised modification, even if the client insists. If in doubt, ask for an amendment to the planning permission. Time limits: the offence is time-barred after 6 years from completion of the work. Amounts: the fine can be up to €300,000 for a legal person.

Four tips to avoid this type of dispute

• Check the permission before starting work: demand a copy of the planning permission and compare it with the quote and plans. If a discrepancy appears, do not start the work without clarifying the situation with the town council.
• Never modify the project without an amending permission: any modification of the external appearance, dimensions or use (e.g., garage into bedroom) requires a new permission or an amending permission. A simple amendment to the contract is not enough.
• Use an architect or project manager: an independent professional can advise you on the compliance of the project and represent you before the town council. Their professional standing protects you from unpleasant surprises.
• Require a compliance guarantee in the contract: ask the contractor to commit in writing to strictly follow the planning permission, subject to penalties. This will allow you to take action against him in case of non-compliance.

Further reading: related case law and developments

This 1981 decision is part of a consistent line. Already in 1975, the Court of Cassation had held that the contractor is liable for non-compliant construction, even if he acted on the owner's orders (Crim., 10 April 1975). More recently, in 2013, the Court specified that the building professional must ensure the legality of the planning permission before carrying out the work (Crim., 9 October 2013, No. 12-87.045). The trend is clear: the courts are increasingly demanding of professionals. Legislative developments have strengthened sanctions: since the ALUR law of 2014, fines can reach €300,000 and imprisonment two years. For the future, expect even greater liability for contractors, particularly in the area of sustainable construction and environmental standards.

Key points to remember

• Question: Can a contractor be prosecuted if the owner agreed to the modification?
  Answer: Yes, his professional status obliges him to refuse work that does not comply with the permission.
• Question: What is the penalty for the contractor?
  Answer: A fine of up to €300,000, and sometimes imprisonment (maximum 2 years).
• Question: What to do if non-compliant work has already been carried out?
  Answer: You must apply for an amending permission retrospectively (if the town council accepts it) or demolish and rebuild. Consult a planning lawyer.
• Question: Is the owner always liable?
  Answer: Yes, as the project owner, he is the primary author of the offence. The contractor is a co-author.
• Question: Can I take action against the contractor for damages?
  Answer: Yes, if you suffer harm (e.g., fine, cost of reinstatement), you can sue him in civil liability under Article 1240 of the French Civil Code.

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 →