Building Permit Refused: Why You Still Risk Criminal Prosecution

Imagine yourself in Biscarrosse, owner of a plot of land overlooking the Cazaux pond. You dream of extending your house to accommodate your extended family. You submit a building permit application, but the mayor refuses it, considering that your project exceeds local planning rules. You are convinced that this refusal is unfair and decide to lodge an appeal (administrative challenge). But in the meantime, you start the works, convinced that your appeal will succeed. Is this a good strategy?

I encounter this situation regularly in my practice, whether in Mont-de-Marsan or on the Côte d'Azur. Many owners think that as long as they challenge the refusal, they are protected from prosecution. This is a mistake that can be very costly. The question every owner asks in this case is simple: "If I challenge the refusal, can I still be prosecuted for building without a permit?"

The answer, clearly provided by a 1993 decision, is unequivocal: yes. The existence of a remedy against a mayoral order refusing a building permit has no effect on the exercise of prosecution for lack of a building permit. In other words, even if you challenge the refusal, you risk criminal sanctions if you build without authorisation. But what exactly does this change for you?

The Facts: A Story That Happens Every Day

Mr. Martin, owner of a plot of land in Saint-Paul-lès-Dax, wished to build an extension to his house. He had obtained a planning certificate (a document indicating the rules applicable to a plot) which gave him hope for his project. Confident, he submits a building permit application. But the mayor refuses, considering that the works exceed the scope of the planning certificate.

Mr. Martin, convinced he is right, decides to challenge this refusal through an administrative appeal. In parallel, he starts the works, thinking that his appeal will succeed and that, in any case, challenging it protects him. The neighbours alert the planning services, who note the construction without a permit. The public prosecutor then initiates criminal proceedings against Mr. Martin for lack of a building permit.

Before the criminal court (pénal jurisdiction), Mr. Martin defends himself by arguing that he has challenged the refusal, and therefore, he should not be prosecuted criminally while his appeal is not decided. The court convicts him nonetheless. Mr. Martin appeals, but the court of appeal confirms the conviction. The case finally reaches the Court of Cassation (highest judicial court), which must decide this crucial question: does challenging a permit refusal protect against criminal prosecution?

The Court's Reasoning — Analysed

The judges of the Court of Cassation analysed the situation with implacable logic. They based themselves on Article L. 480-4 of the Planning Code, which provides for an offence (criminal infraction) for any construction carried out without a building permit when one is required. Their reasoning is simple: this offence is established as soon as the construction is erected without a permit having been previously granted.

In clear terms, for there to be an offence, two conditions must be met: 1) the construction requires a building permit, and 2) no permit has been issued before the start of the works. It does not matter that you have submitted an application and that it was refused. It does not even matter that you challenge this refusal. If you build without a valid permit, you commit a criminal offence.

The Court rejected Mr. Martin's argument that his appeal against the refusal suspended the criminal prosecution. It emphasised that the administrative procedure (the appeal against the refusal) and the criminal procedure (the prosecution for lack of a permit) are two distinct things. One does not block the other. What few people know is that even if your appeal succeeds and the refusal is annulled retrospectively, this does not erase the offence committed at the time you built without authorisation.

In this case, the court of appeal had noted that Mr. Martin had been warned several times, and that his works clearly exceeded the scope of the planning certificate. The Court of Cassation confirmed this analysis, considering that the conviction was justified given the clarity of the rules violated. However, be careful: this decision does not mean that all appeals are useless, but that they do not protect you from criminal prosecution if you act without authorisation.

What This Changes for You — Concretely

If you are a landlord in Mont-de-Marsan and are considering works, this decision has major implications. First, know that building without a permit, even while challenging a refusal, exposes you to criminal sanctions: up to 6 months' imprisonment and a €75,000 fine (current amounts, revised since 1993). Moreover, the court can order the demolition of illegal constructions, which represents a considerable financial loss.

For a tenant, the situation can also be concerning. If your landlord carries out works without a permit and is prosecuted, this can disrupt your occupation, especially if demolition is ordered. Always check that the works envisaged by your landlord are authorised. For a purchaser, buying a property that has undergone works without a permit is risky: you could inherit legal and financial problems. In Saint-Paul-lès-Dax, I have seen cases where buyers had to pay €20,000 to regularise a situation, in addition to the purchase price.

If you are in this situation, you must absolutely wait for the outcome of your appeal before starting the works. Even if this takes time (an appeal can last 1 to 2 years), it is the only way to avoid criminal prosecution. undefined, I have encountered cases where owners lost tens of thousands of euros because they thought they could anticipate. How to react? Consult a specialised lawyer before any action.

Four Tips to Avoid This Type of Dispute

• Always check the need for a permit: before any project, consult the PLU (Local Planning Plan) of your municipality, for example in Biscarrosse, and request a planning certificate to know the exact rules.
• Never start works without written authorisation: even if you have submitted an application, wait for the formal issuance of the permit. An oral agreement or promise is not sufficient.
• In case of refusal, challenge but do not act: use administrative remedies (administrative appeal, litigation) but refrain from building during the procedure. Patience is your best ally.
• Document all your steps: keep proof of your applications, refusals, and appeals. This could be useful in case of dispute, even if it does not exempt you from criminal prosecution if you have built without authorisation.

Further Reading: Related Case Law and Developments

This 1993 decision is part of consistent case law. Before it, similar judgments, such as that of the Court of Cassation of 12 January 1988, had already affirmed the principle that the offence of construction without a permit is independent of appeals against refusal. After 1993, this position has been regularly confirmed, for example in a judgment of 6 March 2007, which specified that even a permit subsequently annulled does not retrospectively justify construction without authorisation.

The trend of the courts is clear: they rigorously protect planning rules, considering that public order (the general interest) takes precedence over private interests. This means that, for the future, it is unlikely that this case law will evolve in favour of a mitigation of criminal prosecution. On the contrary, with the strengthening of environmental issues, controls could become stricter, especially in sensitive areas like the surroundings of the Landes ponds.

Frequently Asked Questions

Q: If I challenge a permit refusal, can I still build?
A: No, absolutely not. Building without a permit, even while challenging the refusal, exposes you to criminal prosecution and heavy sanctions.

Q: What are the concrete risks?
A: Up to 6 months' imprisonment, a €75,000 fine, and the demolition of illegal constructions. The amounts can vary depending on the case.

Q: And if my appeal succeeds and the refusal is annulled?
A: This does not erase the offence committed at the time you built without authorisation. You can still be convicted criminally.

Q: What to do then?
A: Wait for the outcome of your appeal before starting the works. Consult a lawyer to assess your chances and the timeframes.

Q: Does this rule apply everywhere in France?
A: Yes, it is a national case law of the Court of Cassation, applicable throughout the country, including in the jurisdiction of Mont-de-Marsan.

Do you find yourself 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 →