Tacit Planning Permission and Demolition: Who Decides What According to the Court of Cassation?

Imagine you are the owner of a plot of land in Mont-de-Marsan, in the residential district of Nonères. You have submitted a planning permission application to extend your house. The municipal administration delays its response, then eventually refuses your project. You appeal, and in the meantime, you build anyway, convinced that the town hall's silence amounts to a tacit authorisation (planning permission granted automatically by default due to a lack of response within the statutory time limits).

But then the municipality sues you before the civil court (tribunal judiciaire), demanding the demolition of your construction under Article L. 480-14 of the French Planning Code (a provision allowing municipalities to request the demolition of irregular constructions). Who should decide this dispute? The civil judge, seized by the municipality, or the administrative judge, who has jurisdiction over disputes with the administration?

The Court of Cassation, in its decision of 27 May 2021, provides a clear answer that goes well beyond the specific case. It redraws the boundaries between the two court systems in planning disputes, with major practical consequences for any property owner, developer, or local authority. But what exactly does this change for your project in Capbreton or elsewhere in the Landes?

The Facts: A Story That Happens Every Day

Mr L., owner of a plot of land in the municipality of Tresques (Gard), wishes to construct a building. He submits a planning permission application, but the town hall refuses to grant it. As permitted by law, Mr L. then files a request for confirmation under Article L. 600-2 of the French Planning Code (a provision allowing one to request the administration to confirm or overturn its initial refusal).

The administration remains silent for more than two months. According to Mr L., this silence constitutes a tacit acceptance of his request: he would therefore benefit from a tacit planning permission (an implicit authorisation arising from the administration's failure to respond within the legal time limits). Confident in this belief, he commences the works.

The municipality of Tresques, however, does not see it that way. It sues Mr L. before the civil court (the tribunal judiciaire) to demand the demolition of the construction, invoking Article L. 480-14 of the French Planning Code. According to the municipality, the construction is irregular and must be demolished.

The tribunal judiciaire, then the court of appeal, grant the demolition request. They consider that Mr L. cannot rely on a tacit planning permission, because the request for confirmation was not properly processed. Mr L. then files an appeal to the Court of Cassation, arguing that the civil judges were not competent to rule on the existence of a tacit planning permission, a matter which he believes falls within the jurisdiction of the administrative courts.

In other words, the dispute revolves around a question of jurisdiction: who, the civil judge or the administrative judge, must decide whether a tacit planning permission exists or not, when the municipality requests demolition?

The Court's Reasoning — Analysed

The Court of Cassation makes a subtle but fundamental distinction between two separate legal questions.

On the one hand, it recalls that "only the civil court has jurisdiction to rule on a municipality's action seeking, on the basis of Article L. 480-14 of the French Planning Code, the demolition of a construction irregularly built on private property". In plain terms, when the municipality directly sues the property owner before the civil courts to obtain the demolition of a construction it deems illegal, it is indeed the civil judge (tribunal judiciaire, court of appeal) who is competent. This jurisdiction is traditional, as the action for demolition concerns an interference with private property.

On the other hand, and this is the major contribution of the decision, the high court adds: "it falls to the administrative court to rule on the existence of a tacit planning permission, arising from the administration's silence upon expiry of the processing period for the confirmation of the planning permission application".

Why this division? Because the question of whether a tacit planning permission arises from the administration's silence pertains to the litigation concerning administrative acts. It is a preliminary question (a question that must be decided before ruling on the merits of the dispute) which concerns the assessment of the legality of an administrative situation. Only the administrative judge is authorised to review the acts and the silence of the administration.

The Court of Cassation therefore quashes the court of appeal's judgment. Indeed, the latter had, in order to dismiss Mr L.'s claim, itself examined the existence of the tacit planning permission and concluded it did not exist. However, in doing so, it encroached on the jurisdiction of the administrative judge. It "violated Article L. 600-2 of the French Planning Code" by not respecting the division of jurisdiction.

What few people know is that this decision confirms and clarifies a consistent line of case law. It is not a reversal, but a rigorous application of the principle of separation of administrative and judicial authorities. The municipality's arguments (the illegality of the construction) and the property owner's arguments (the existence of a tacit authorisation) must be examined by two different judges, according to the nature of the question raised.

What This Means for You — Practically

This clarification has very practical implications, differing according to your profile.

If you are a property owner or developer (as might be the case for a second home project in Capbreton), this decision protects you. If the municipality sues you for demolition before the tribunal judiciaire, and you invoke a tacit planning permission, the civil judge will not be able to decide himself that this permission does not exist. He will have to stay proceedings (suspend his judgment) and refer this preliminary question to the administrative court. This gives you an additional chance to assert your rights. undefined, I have encountered cases where property owners in the Landes faced a late refusal of permission, after having commenced works based on presumed accepting silence. This decision offers them a more secure avenue of recourse.

If you are a municipality, the procedural strategy is affected. Suing directly for demolition before the civil judge remains possible, but if the property owner raises the defence of tacit permission, the procedure will be slowed down by a preliminary reference (a preliminary question sent to another judge) to the administrative court. The litigation risks lasting several more years. The cost for the local authority can thus easily exceed €10,000 to €15,000 in procedural and expert fees.

If you are a purchaser considering buying a recently built or extended house, be extremely vigilant. Check not only the explicit planning permission, but also any ongoing litigation. A demolition action suspended by a preliminary question on a tacit permission is a sword of Damocles. Stipulate in the deed of sale a clause whereby the seller guarantees the absence of any such dispute, under penalty of rescission of the sale and damages.

If you are a tenant in a new or renovated dwelling without apparent permission, question the owner. If demolition is ordered, your lease could be terminated early, leaving you without accommodation. How to react? Demand communication of the planning permission before signing the lease.

Four Tips to Avoid This Type of Dispute

• Never presume the administration's silence. Even if the legal time limits (often two months for a confirmation) are exceeded, consult a specialised lawyer before starting the first dig. A tacit permission can be challenged on many procedural points.
• For any planning permission application, prefer the digital route (online service) and demand dated acknowledgements of receipt. This constitutes irrefutable proof of the date of submission and the starting point of the silence periods.
• In case of refusal, carefully analyse the grounds before filing a request for confirmation (Article L. 600-2). A poorly founded confirmation will not produce any useful effect and will unnecessarily expose you to litigation.
• If you are sued for demolition, immediately raise the plea of lack of jurisdiction if you believe you hold a tacit permission. Argue before the civil judge that the question of the existence of this permission falls within the jurisdiction of the administrative judge. This is an essential procedural means to gain time and steer the debate to the correct judge.

In-Depth Analysis: Related Case Law and Developments

This decision fits into a coherent line of jurisprudence. Already, in a judgment of 9 July 2014 (No. 13-20.900), the Court of Cassation had held that the civil judge, seized of a demolition action, could not examine the legality of a planning permission explicitly granted by the administration, this question falling within the jurisdiction of the administrative judge. The 2021 decision extends this principle to tacit planning permission, which is an implicit administrative act.

The trend in the courts is therefore towards strengthening the specialisation of jurisdictions. The civil judge remains the guardian of private property and the rights attached to it (demolition, nuisance). The administrative judge remains the only one competent to interpret and review the acts (explicit or tacit) of the administration in planning matters.

For the future, this means a certain procedural complexity in mixed disputes, where questions of private law and public law are intertwined. Litigants will often have to conduct two parallel procedures, with the costs and delays that this entails. This reinforces the importance of early and specialised legal advice to choose the best strategy.

Frequently Asked Questions

Q: Is a tacit planning permission as valid as a written one?
A: Yes, legally, a tacit permission has the same force as a permission granted by order. It authorises the works. But it is more fragile as evidence: in case of dispute, it is for the property owner to prove that the administration remained silent within the legal time limits.

Q: What happens if the administrative judge says there is no tacit permission, but the civil judge considers the construction does not deserve demolition?
A: This is impossible under this scheme. If the administrative judge says there is no permission (therefore no authorisation), the construction is by definition irregular. The civil judge, once this question is decided, will very likely order demolition, except in exceptional cases (such as limitation of the action).

Q: Does this decision also apply to prior notifications of works?
A: The principle is similar. The administration's silence on a prior notification can constitute a tacit agreement. The question of the existence of this tacit agreement would also fall within the jurisdiction of the administrative judge in case of litigation.

Q: How long does a procedure with a preliminary reference to the administrative court last?
A: You must allow at least an additional 2 to 3 years. The procedure before the administrative court (Bordeaux for the Landes) often takes 18 to 24 months, to which is added the time for the civil procedure to resume.

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