Expired Planning Permission: Beware of the Two-Year Deadline to Start Works

Imagine: you have just acquired a beautiful plot of land in Roquebrune-Cap-Martin, with an unobstructed view of the Mediterranean. You obtain your planning permission in March 2022, but the works are delayed – a dispute with the contractor, financing issues, life happens. In June 2024, you finally decide to start. But the town hall refuses: your permission has expired. How is this possible?

This situation, more common than one might think, is at the heart of a decision by the French Supreme Court (Cour de cassation) of 18 June 2003 (No. 01-02.474). The judges ruled on a dispute between a contractor and a municipality, recalling a simple but unforgiving rule: planning permission lapses if works are not undertaken within two years from its notification or tacit grant. A lesson many owners and professionals learn at their expense.

But what does this actually mean for you? Let us dive into the details of this case and its practical implications, particularly on the Côte d'Azur.

The Facts: An Everyday Story

We are in Villefranche-sur-Mer, in 1994. A contractor, whom we will call Mr. X, obtains planning permission on 14 March, notified on 16 March. The project? A residential complex of several units, no doubt with a view of the bay. But relations with the building owner deteriorate, works stop, and a court order requires the contractor to resume works, subject to a periodic penalty payment (astreinte – a financial penalty per day of delay). The penalty runs from 24 April 1997.

Between 24 April and 13 May 1997, i.e., less than three weeks, the contractor remains inactive. Why? Because, according to him, the planning permission had already lapsed. Indeed, the two-year period ran from 16 March 1994, i.e., until 16 March 1996. However, works had not been undertaken before that date. On 13 May 1997, the municipality officially declares the permission lapsed (caducité).

The Court of Appeal, to liquidate (calculate) the amount of the penalty, holds that the contractor remained inactive between 24 April and 13 May 1997, and orders him to pay a substantial sum. The contractor appeals to the Supreme Court: according to him, since the permission had lapsed, he was not obliged to resume works, and the penalty could not run.

The Reasoning of the Court – Deconstructed

The Supreme Court rules in favour of the contractor. It relies on Article R. 421-32 of the French Town Planning Code (Code de l'urbanisme), which provides that planning permission lapses if construction is not undertaken within two years of its notification or tacit grant. In other words, if you do not lay the first stone (or start the foundations) within two years, your permission becomes void, as if it had never existed.

The high judges criticise the Court of Appeal for ignoring this rule. Indeed, the Court of Appeal had found that the permission was obtained on 14 March 1994 and notified on 16 March 1994. The two-year period therefore expired on 16 March 1996. However, works had not been undertaken by that date. Consequently, the permission had lapsed even before the penalty started to run on 24 April 1997. The contractor was therefore not obliged to carry out works based on a non-existent permission. The Court of Appeal violated the text by condemning him.

What few people know is that the lapse is automatic: it does not need to be declared by the town hall to take effect. The municipality's letter of 13 May 1997 merely confirmed a situation that had already been in place for a year. In short, the penalty should never have been imposed, because the obligation to carry out works had become impossible.

Note, however: this decision does not challenge the principle of the periodic penalty payment in general. It simply recalls that the penalty cannot sanction the non-performance of an obligation that has become legally impossible.

What This Means for You – Practical Implications

For owners: if you obtain planning permission, you must imperatively start works within two years. "Start" means significant works, not just a symbolic shovel. Courts require real and serious acts: foundations, earthworks, etc. If you exceed the deadline, your permission lapses, and you must file a new application, with all the constraints that entails (new planning rules, taxes, etc.).

For contractors and building owners: this decision is a sword of Damocles. If a permission has lapsed, you cannot require the resumption of works. undefined, I have encountered cases where a property developer in Nice had obtained permission for a 10-unit building, but a conflict with the contractor delayed the site by more than two years. Result: the permission fell, and the developer had to start over, losing months and thousands of euros.

Let us take a concrete example: in Villefranche-sur-Mer, a project for a 200 m² villa with permission obtained in 2020. If works do not start before 2022, the owner will have to submit a new application in 2023. In the meantime, the Local Town Planning Plan (PLU) may have changed, now banning constructions over 150 m². Goodbye project!

For tenants or purchasers: be vigilant. If you buy land with planning permission obtained more than two years ago, check that works have actually started. Otherwise, the permission is void, and you will have to obtain a new one, with no guarantee of success.

Four Tips to Avoid This Type of Dispute

• Note the notification date of your permission: upon receipt, write the date in your diary and set a reminder at 18 months. The two-year period runs from notification, not from the date of grant.
• Start works quickly, even modestly: a start of earthworks or pouring foundations is enough to "undertake" works. Do not wait until you have all the financing.
• In case of a dispute with the contractor, act quickly: if a conflict blocks the site, apply to the interim relief judge (juge des référés) for an order to carry out works before the two-year period expires. Do not let the situation fester.
• Request an extension of time if necessary: in exceptional cases (natural disaster, administrative problem), you can apply for an extension of the permission. But this is a cumbersome and uncertain procedure.

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Further Analysis: Related Case Law and Developments

This 2003 decision is part of a consistent line of case law: the Supreme Court strictly enforces the validity periods of planning permissions. For example, in a judgment of 24 January 2019 (No. 17-26.423), it specified that the lapse can be established even in the absence of a decision by the town hall. In other words, the permission dies on its own if works do not start.

However, a more recent decision of the French Council of State (Conseil d'État, 22 July 2020, No. 430149) relaxed the notion of "undertaking works": significant preparatory acts (such as purchasing materials or signing contracts) may be taken into account. But note, the Supreme Court remains stricter in civil matters. The current trend is towards increased severity, especially in high-demand areas like the Côte d'Azur, where land pressure is high.

What this means for the future: owners must be even more vigilant. Do not count on the leniency of judges. The two-year deadline is a guillotine.

Summary and Next Steps

FAQ:

1. My planning permission was granted in 2021, I have not started works. Has it lapsed? Yes, if you have not undertaken works before 2023. Check the notification date.
2. Can I request an extension of my permission? Yes, in certain cases (force majeure, etc.), but the request must be made before the deadline expires. Afterwards, it is too late.
3. What should I do if my permission has lapsed? You must file a new planning application, complying with the planning rules in force. Expect additional delays and costs.
4. Is a simple start of earthworks sufficient? Yes, if the works are real and visible. But note, if you then stop, the permission may lapse for interruption.
5. What are the risks if I build without valid permission? You face criminal penalties (fine, demolition) and damages. Do not take this risk.

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