Planning Permission and Sanitary Regulations: Who Interprets What?

Imagine: you live peacefully in Toulon, in a family house with a view over the harbour. One morning, your neighbour begins building a three-storey block of flats. Problem: the distance between his building and your wall is less than that required by the departmental sanitary regulations. You wonder: is this planning permission legal? To whom can you apply for redress?

This is precisely the type of situation decided by the Court of Cassation in its ruling of 4 March 1971. A preliminary question arose: who has jurisdiction to interpret the departmental sanitary regulations (RSD) when their application is challenged in a neighbour dispute? The judicial judge or the administrative judge?

The answer is clear: it is for the judicial courts to interpret these regulations, even if they are administrative acts. This means that you, as a neighbouring owner, can assert your rights before the judicial court without being referred to an administrative court. Analysis.

The Facts: A Story Like Many Others

In this case, the Chamber of Commerce and Industry of Toulon had obtained planning permission to erect a building on land in Bandol, a popular seaside resort. Neighbouring owners challenged the construction, arguing that the siting did not comply with planning requirements, in particular the minimum distances imposed by the departmental sanitary regulations (RSD).

The neighbours then sued the Chamber of Commerce before the Tribunal de Grande Instance (now the Tribunal Judiciaire) for demolition of the building and damages. Their argument: the planning permission, although granted by the administration, could not tacitly derogate from the mandatory sanitary rules. However, the building was erected at less than the regulatory distance.

The Chamber of Commerce raised a procedural objection: only the administrative judge can interpret a departmental sanitary regulation because it is an administrative regulatory act. According to them, the judicial court lacked jurisdiction to rule on the legality of the planning permission and on the interpretation of the RSD. The case therefore went up to the Court of Cassation.

The twist? The Court rejected the Chamber of Commerce's argument. It held that, even though the planning permission is an administrative act, the departmental sanitary regulation is a text that the judicial judge can interpret when seised of a neighbour dispute based on abnormal disturbance (Article 1240 of the Civil Code).

The Court's Reasoning — Analysed

The Court of Cassation relies on Article 91 of the former Town Planning Code, which refers to departmental sanitary regulations for certain requirements. But it specifies that these regulations, although administrative in nature, are 'regulations of public administration' that the judicial judge may interpret incidentally, i.e., in the context of a dispute of which he is properly seised.

In practical terms, this means that if you are an owner in Toulon and you consider that a neighbouring construction violates the RSD, you do not have to go before the administrative court to have that regulation interpreted. The judicial judge (Tribunal Judiciaire) can do so himself, because the interpretation is merely a necessary preliminary to deciding the main dispute (the claim for demolition or damages).

Is the Court innovating? No, it confirms earlier case law (notably rulings from 1969) which tended to extend the jurisdiction of the judicial judge in interpreting regulatory administrative acts, as long as the issue is a private law dispute (neighbour disturbance). It dismisses the Chamber of Commerce's argument that the planning permission could have tacitly derogated from the RSD: 'the planning permission could not grant, even implicitly, a derogation from the regulations in force'.

The judicial judge therefore remains competent to verify whether the construction complies with the RSD, and if not, to order demolition or award damages. The administration, in granting the permission, has no power to derogate from the sanitary rules.

What This Means for You — Practically

If you own property in Toulon or Bandol, and a neighbour builds in violation of the departmental sanitary regulations (e.g., insufficient distances, excessive height), you can act directly before the Tribunal Judiciaire. You do not need to await an administrative court decision on the legality of the planning permission.

For a tenant: if your view is obstructed by a non-compliant neighbouring construction, you can claim a rent reduction or damages for disturbance of enjoyment. The judicial judge can interpret the RSD to assess the disturbance.

For a buyer: before purchasing a property, check that neighbouring constructions comply with the RSD. An apparently regular planning permission may conceal non-compliance. If you buy and the disturbance arises later, you can take action against the builder.

Example with figures: in Bandol, an owner obtained €15,000 in damages for loss of view and sunlight, after proving that the neighbouring construction was 3 metres away instead of the 6 metres required by the RSD. The judge interpreted the regulation himself, without referring to an administrative court.

Four Tips to Avoid This Type of Dispute

• Before building: consult the departmental sanitary regulations from the Regional Health Agency (ARS) or your town hall. Do not rely solely on the planning permission: the administration can make a mistake.
• If you are a neighbour: as soon as works begin, have the distances and heights recorded by a bailiff. This record will be strong evidence in court.
• In case of a dispute: sue directly before the Tribunal Judiciaire. Rely both on abnormal neighbourhood disturbance (Article 1240 of the Civil Code) and violation of the RSD.
• For a transaction: when selling a property, state explicitly in the deed whether the constructions comply with the RSD. This protects you in case of a later claim.

Further Reading: Related Case Law and Developments

Before this ruling, the tendency was to systematically refer the interpretation of sanitary regulations to the administrative judge. A 1968 decision of the Conseil d'État ("Ville de Paris" case) had even affirmed that the judicial judge could not interpret a sanitary regulation. But the Court of Cassation resisted, asserting its jurisdiction in private law disputes.

Since 1971, case law has evolved: today, the judicial judge routinely interprets sanitary regulations in neighbour disputes. However, if the validity of the regulation itself is challenged (and not merely its meaning), it is for the administrative judge to decide. This subtle distinction remains relevant.

For the future, one can expect the judicial courts to continue interpreting the RSD, but with increased caution if the issue touches on the legality of the planning permission (which remains within the administrative domain).

What You Absolutely Must Remember

FAQ:

• Can I sue my neighbour for non-compliance with the RSD? Yes, before the Tribunal Judiciaire, without going through the administrative judge.
• Does the planning permission protect the builder? No, the permission cannot tacitly derogate from the RSD. If the construction is non-compliant, the builder can be condemned.
• What is the time limit to act? You have 5 years from completion of the works to claim demolition (civil liability action). For abnormal disturbance, the limitation is 5 years from the manifestation of the damage.
• What are the risks for the builder? Demolition of the building, damages, and sometimes a penalty payment (e.g., €100 per day of delay).
• Do I need a lawyer? Yes, because the procedure is technical. A lawyer specialising in property law can help you build a solid case and estimate the amount of damages.

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 →