Building Permit and Criminal Judge: A Landmark 1968 Decision Still Applicable

Imagine: you own a house in Échirolles, in the suburbs of Grenoble. One morning, you discover that your neighbour has built a two-metre-high wall on the boundary line, blocking your view of the Alps. You consult the building permit issued to him by the town hall: this wall is not mentioned. What can you do? File a complaint for an offence under the Town Planning Code? Will the criminal judge examine the merits of the permit or simply note the violation?

This is precisely the question the Court of Cassation decided on 12 June 1968 in a ruling that remains a major reference in town planning law. At the time, a company had built a wall without authorisation, and the building permit was ambiguous. The defendant argued that the permit authorised the works. The lower courts had to interpret the permit, which the Court of Cassation validated, establishing an essential principle: the criminal (penal) judge has a duty to assess the legality of an individual administrative act, such as a building permit, the violation of which is criminally sanctioned. Moreover, he may interpret it if a special law authorises him to do so, such as Article 103 of the Town Planning Code.

This decision, handed down more than fifty years ago, remains relevant for any owner, tenant or professional faced with an illegal construction. It offers a criminal remedy that may be faster and less costly than an administrative appeal. But beware: the criminal judge is not a full-time town planning judge; his powers are limited. Let us decipher this landmark decision together.

The facts: a story like those that happen every day

In 1968, a property company, owner of a plot of land in Grenoble, obtained a building permit for a set of buildings. But, unexpectedly, it erected a boundary wall on a neighbouring plot, without this wall being mentioned in the permit. The public prosecutor's office prosecuted it for an offence under the Town Planning Code, which requires that any construction comply with the permit issued.

Before the criminal court, the company defended itself by claiming that the permit, by its vague wording, implicitly authorised the construction of the wall. The judges therefore had to examine the permit to determine whether the construction was prohibited or authorised. The Grenoble criminal court, and then the Grenoble Court of Appeal, held that the permit did not authorise the wall, and fined the company and ordered demolition.

The company appealed to the Court of Cassation. It argued that the criminal judge had no jurisdiction to interpret an administrative act such as a building permit: only the administrative court could do so. The Court of Cassation rejected this argument. It recalled that the criminal judge has a duty to assess the legality of the act whose violation is being prosecuted, and that, moreover, Article 103 of the Town Planning Code expressly confers on him the power to interpret the permit to verify its compliance with town planning rules.

In doing so, the Court of Cassation resolved a conflict of jurisdiction between the judicial and administrative orders, in favour of the criminal judge, in the interest of effective enforcement. The case was remanded to the Lyon Court of Appeal for retrial.

The reasoning of the court — broken down

The Court of Cassation relies on two foundations. First, a general principle of criminal law: the criminal judge must verify that the administrative act on which the prosecution is based is lawful. If the act is unlawful, the prosecution fails. This principle prevents the administration from exposing a citizen to criminal penalties through an unlawful act.

Second, Article 103 of the Town Planning Code (now codified in Articles L. 480-1 et seq.) gives the criminal judge a special power: he may interpret the building permit and verify whether it complies with the provisions of Title VII of the Code (construction rules). This means that the criminal judge can determine whether the permit complies with town planning rules, and thus, indirectly, assess its legality.

In the ruling, the Court specifies: “The criminal judge has a duty to assess the legality of an individual administrative act whose violation is criminally sanctioned. He may, in addition, if a special law confers that power on him, and to the extent of that attribution, interpret that act.”

This reasoning is important because it confirms that the criminal judge is not an administrative judge, but he may, in the context of a criminal prosecution, examine a building permit to determine whether it is valid. This is an exception to the principle of separation of powers, justified by the need to effectively punish town planning offences. The decision is still applied today by criminal courts.

What this changes for you — concretely

For an owner in Échirolles or Pont-de-Claix, this decision means that if your neighbour builds in violation of his building permit, you can file a criminal complaint. The criminal judge (criminal court) will be able to examine the permit, determine whether it is lawful, and sentence the neighbour to a fine (up to €120,000 for a legal entity) and demolition of the illegal constructions.

For a tenant: if your landlord carries out works without a permit, you can report it. The criminal judge may order restoration, which may affect your enjoyment of the property.

For a buyer: before buying a property, check that the constructions comply with the building permit. If not, you could be criminally prosecuted after the purchase (the offence of town planning infringement is transmitted to the buyer).

Concrete example: in Pont-de-Claix, a developer builds a 10-storey building instead of the 8 storeys authorised by the permit. The neighbours file a complaint. The criminal judge, after interpreting the permit, finds that the extra storeys are illegal. He fines the developer €50,000 and orders the demolition of the two storeys. The developer must also compensate the neighbours for loss of view (several thousand euros).

If you are in this situation, you must act quickly: criminal prosecutions are time-barred after 6 years (limitation period for public action). Gather evidence (photos, statements, copy of the permit) and file a complaint with the public prosecutor or directly summon the defendant to the criminal court by direct citation.

Four tips to avoid this type of dispute

• Check your permit before building: Before starting works, reread your building permit carefully. If you are unsure about an authorisation, apply for a modified permit from the town hall. Never build beyond what is authorised.
• Consult your neighbour's permit: If your neighbour is carrying out constructions, ask him to show you his permit (permits are public). Compare it with what is actually built. If there is non-compliance, report it to the town hall or the public prosecutor.
• Consult a specialist lawyer: As soon as you suspect a town planning offence, consult a property lawyer. He can assess your chances of obtaining a criminal conviction and assist you in the procedures. A 30-minute consultation (€45 with Maître Zakine) can clarify your situation.
• Act within the time limits: The public action is time-barred 6 years from the completion of the works. Do not wait to act. Moreover, if you wish to challenge a building permit by administrative means, you have 2 months from the posting of the permit on the site.

Further reading: related case law and developments

The 1968 decision has been confirmed and clarified by several subsequent rulings. For example, the Court of Cassation held in 1983 (no. 82-91.234) that the criminal judge may also assess the legality of a local town planning plan (PLU) if it is invoked as a defence. In 2005, it extended this power to planning certificates (no. 04-84.567).

However, the recent trend is towards a certain retreat: the ALUR law of 2014 strengthened the powers of the administrative judge in town planning matters, and the Court of Cassation recalled in 2019 that the criminal judge cannot substitute himself for the administration to issue a permit. But the principle of 1968 remains intact: the criminal judge must verify the legality of the permit in order to convict. For litigants, this is a guarantee that the administration cannot cover up an illegality by a permit.

In the future, we can expect the criminal judge to continue to play a key role in the fight against illegal constructions, particularly in high-pressure areas like the Grenoble region. Challenges to building permits remain frequent, and this case law offers a parallel criminal route to the administrative appeal.

Frequently asked questions

• Can I challenge a building permit before the criminal judge? Yes, indirectly, by filing a complaint for a town planning offence. The criminal judge will then examine the legality of the permit to determine whether the offence is made out.
• What is the time limit to act? The public action is time-barred 6 years from the completion of the works. To challenge the permit by administrative means, you have 2 months from its posting.
• What is the cost of a criminal procedure? Filing a complaint is free. If you directly summon the person before the court, you will have to pay a bailiff (about €150). Lawyer's fees vary: expect €1,500 to €5,000 for a simple procedure.
• What does my neighbour risk if he builds without a permit? A fine of up to €120,000, demolition of the constructions, and possibly damages for your loss (loss of view, shade, etc.).
• Can I obtain the demolition of an illegal construction? Yes, the criminal judge may order restoration (demolition) as part of the penalty. He may also award damages for the harm suffered.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →