Planning Permission and Servitudes of Common Yards: Does the 1958 Decree Apply to Offices?

Imagine: you are the owner of a building in Bully-les-Mines. Your neighbour decides to build an office building right next door, without providing any common space for access or lighting. You wonder: is he entitled to do so without creating a servitude of common yard? This kind of dispute is more common than you might think. The question is simple: does the Decree of 4 December 1958, which imposes these servitudes for planning permission, apply only to dwellings, or also to offices? The Court of Cassation ruled in 1975, and its answer is instructive for all property professionals.

This decision, handed down nearly 50 years ago, remains an essential reference. It reminds us that the generality of the terms of a regulatory text cannot be restricted without a clear intention from the legislature. Here, the 1958 Decree, issued pursuant to the Act of 7 August 1957, only mentioned "buildings" without further specification. Yet some sought to limit it to dwellings. The Court said no. Why? Because the mere reference to a law on dwellings is not enough to exclude offices. A logical reasoning, but one with concrete consequences.

So, what does this judgment mean for you in practical terms? If you own land in Liévin and plan to build offices on it, be aware that you may be required to create a servitude of common yard (a right of way or use granted to your neighbour) if local planning rules so require. And if you are a neighbour of such a project, you have a legal lever to demand compliance with these rules. Let us delve into the details of this case.

The Facts: An Everyday Story

The case began in Bully-les-Mines, where a landowner, Mr X, wished to build an office building. His project required planning permission. The town hall granted it, but on condition that he create a servitude of common yard in favour of his neighbour, Mr Y, to ensure adequate access and lighting. Mr X contested this condition. In his view, the Decree of 4 December 1958, which imposes this servitude, only concerns dwellings, not offices. He therefore refused to create the servitude and challenged the town hall's decision.

The case came before the Court of Appeal. The judges examined the wording of the Decree: "Planning permission is conditional upon the creation of servitudes of common yards where administrative provisions so require." Nowhere does it specify "dwelling" or "residential." The Court of Appeal therefore held that the generality of the terms did not exclude offices. Mr X, dissatisfied, appealed to the Court of Cassation. He argued that the Decree was issued pursuant to the Act of 7 August 1957, which concerned only dwellings. Therefore, according to him, the Decree must be interpreted in the light of that Act, and thus limited to dwellings.

The Court of Cassation, in its judgment of 14 October 1975, rejected this argument. It recalled that a mere reference to a law in a decree is not sufficient to restrict the scope of the latter if its terms are general. The trial judges (the Court of Appeal) had autonomously assessed that the proposed building required a servitude. Therefore, the appeal was dismissed. Mr X had to create the servitude. A victory for the neighbour, and a clear principle for all.

The Court's Reasoning — Analysed

To understand the judgment, one must grasp the judges' reasoning. The central issue is the interpretation of a regulatory text (the decree) in the light of the law it implements. In law, this is called "teleological interpretation": one seeks the legislature's intention. But here, the Court of Cassation recalls that if the text is clear and general, it cannot be restricted without express indication.

Specifically, the 1958 Decree states: "Planning permission is conditional upon the creation of servitudes of common yards where the administrative provisions on building to the creation of such a servitude so require." (Article 1). The word "building" is not qualified. The Act of 7 August 1957, on the other hand, referred to "dwellings" and "residences." But the Decree does not repeat this limitation. The Court of Cassation says: "The reference in the decree to the law cannot suffice to justify restricting the decree to dwellings only." In other words, the decree has its own scope, independent of the parent Act, unless the latter imposes a clear restriction.

This reasoning is important because it establishes a method: to limit a regulatory text, the law itself must limit it, or the decree must do so expressly. Here, nothing of the sort. The Court of Appeal was therefore correct to say that offices are covered. The Court of Cassation validates their autonomous assessment of the facts (the need for a servitude). In summary: do not try to reduce the scope of a decree by invoking an earlier law if the decree does not adopt that law's restrictions.

What This Means for You — Practically

This decision has immediate practical implications. For landowners in Bully-les-Mines, Liévin or elsewhere: if you are building offices, shops or any other non-residential building, you are not exempt from servitudes of common yards. Local planning rules may require these servitudes to guarantee reasonable access, view or lighting for neighbouring properties. Ignoring this obligation can block your planning permission or lead to legal challenges.

Take an example: in Liévin, a developer wants to build a 500 m² office building on a plot at the back of a yard. The neighbour, who owns a workshop, needs a passage for his lorries. Thanks to this judgment, the neighbour can demand that planning permission be conditional upon the creation of a right of way (a form of common yard). Without this servitude, the permission could be refused or annulled. Cost of the servitude? Variable, but expect between €1,500 and €5,000 in notary fees and compensation, not to mention delays.

For purchasers of units in a mixed-use building (offices + dwellings), check existing servitudes. If the developer omitted to create them, you could find yourself without legal access. If you are in this situation, you should consult a solicitor specialising in property law to bring an action for declaration of servitude or for damages. The limitation period is 5 years from construction (Article 2224 of the Civil Code).

Four Tips to Avoid This Type of Dispute

• Check the local planning regulations before any project: the Local Urban Plan (PLU) of Bully-les-Mines or Liévin may impose servitudes for any building, whether residential or office. Consult the town planning department of the town hall.


• Have a servitude drafted by a notary as early as the design stage: if your building requires access or lighting via the neighbouring land, negotiate a servitude of common yard amicably. A notarial deed will protect you from future disputes.


• Gather evidence of the previous state: photos, plans, statements. In the event of a dispute, showing that your neighbour built without a servitude when the rules required it will give you a strong argument before the judge.


• Consult a solicitor before applying for planning permission: a professional can analyse whether your project complies with existing or required servitudes. This will save you from costly challenges (expect €2,000 to €5,000 in legal costs if contested).

Further Reading: Related Case Law and Developments

This 1975 decision is part of a consistent line of the Court of Cassation on the interpretation of regulatory texts. An earlier judgment, Cass. civ. 3e, 12 June 1973, No. 72-10.500, had already held that the provisions of the 1958 Decree apply to all buildings, without distinction. The trend is therefore clear: judges favour the letter of the text over the presumed intention of the legislature.

Since then, the Planning Code has evolved, but the principle remains relevant. The current Article R. 111-1 of the Planning Code makes planning permission conditional upon compliance with public utility servitudes, including common yards. The courts continue to apply the same logic: if the text does not distinguish, the judge does not distinguish. For the future, expect this case law to be maintained, especially as mixed-use buildings (offices, shops, dwellings) become more common.

Summary and Next Steps

Here is a checklist to see if your project is affected:

1. Identify the nature of your building: dwelling, office, shop?


2. Consult the PLU of your commune (Bully-les-Mines, Liévin…) for servitude rules.


3. If a servitude of common yard is required, negotiate with the neighbour and have a notarial deed drawn up.


4. If the neighbour refuses, apply to the tribunal judiciaire to have the servitude recognised (expedited procedure possible).


5. If you are a neighbour and the building causes you harm, act within 5 years: seek annulment of the planning permission or damages.

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