Tacit Planning Permission: The Burden of Proving Its Content Lies with the Applicant

Imagine: you have just bought a beautiful villa in Mont-de-Marsan, with a swimming pool and stunning views over the Landes. A few months later, you receive a letter from the town hall informing you of works that do not comply with the original permission. You think to yourself: "But I obtained a tacit amending permission, everything is in order!" Yet, before the judge, you cannot prove that this permission covers all the discrepancies found. Result: you are ordered to restore the property to its original state at your own expense. How is this possible? This is exactly what happened to Mr B., a property owner in Mont-de-Marsan, and what the Court of Cassation decided in a judgment of 24 September 2019 (No. 18-86.164).

This question is crucial for any property owner, developer or real estate professional: who must prove the content of a tacit permission? The answer is not intuitive. Many think that it is for the administration or the neighbour who challenges to show that the tacit permission does not cover the works. But the Court of Cassation says exactly the opposite: it is for the applicant (the one who requested the permission) to prove what his tacit permission contains, by producing his initial application and the accompanying documents. In short, if you cannot demonstrate that your application covered the works carried out, you risk serious consequences.

In this article, we will analyse this decision, its practical consequences, and give you concrete advice to avoid ending up in the same situation as Mr B. Whether you are a property owner in Dax, a developer in Mont-de-Marsan, or a simple buyer, what you are about to read could save you a lot of legal trouble.

The Facts: A Story That Happens Every Day

Mr B. is the owner of a plot of land in Mont-de-Marsan. In 2010, he obtained planning permission for a villa of 319 m² with a height of 7 metres. But as often happens in construction projects, modifications appear during the works: an extension here, a roof modification there. Mr B. then applies for amending permissions. Without any response from the administration within the legal timeframe (generally two months), tacit amending permissions arise. Mr B. believes he is in order and finishes his villa.

A few years later, a dissatisfied neighbour reports irregularities to the town hall. A report is drawn up listing several infractions: excessive built surface area, excessive height, non-compliance with distances from boundary lines. Mr B. is criminally prosecuted for building without permission or non-compliant building. Before the criminal court of Mont-de-Marsan, he defends himself by invoking his tacit amending permissions. According to him, these permissions regularise all the irregularities noted.

But the court does not follow him. He is ordered to restore the property to its original state under penalty. Mr B. appeals. The Court of Appeal of Pau confirms the order. It notes that Mr B. did not produce his initial application for amending permission, nor any document establishing that this permission covered all the irregularities. In the absence of proof, the tacit permission cannot be invoked to justify the disputed works. Mr B. appeals to the Court of Cassation, but the Court of Cassation dismisses his appeal.

What is striking in this case is that Mr B. had indeed obtained tacit permissions, but he could not demonstrate their precise content. The question was not whether the permissions existed, but what they exactly authorised. And on this point, the burden of proof lay with him.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment of 24 September 2019, approves the reasoning of the Court of Appeal. It recalls a fundamental principle: "The content and scope of a tacit planning permission can only be demonstrated by the applicant, on the basis and within the limits of the application he has made." In other words, if you want to rely on a tacit permission, it is for you to prove what you applied for. The administration does not have to do it, and the judge cannot guess.

In this case, the Court of Appeal had sovereignly assessed the documents in the file and noted that nothing established that the tacit amending permission concerned "all the irregularities detailed in the report and the prosecution". The Court of Cassation validates this assessment. It adds that the original permission continues to produce its effects as long as the tacit amending permission is not annulled, but this does not dispense the applicant from proving that the amending permission covers the disputed works.

This reasoning follows a classic probative logic: he who invokes a right must prove it. In matters of tacit permission, the proof rests on the application file lodged with the town hall. If the applicant does not keep a copy of his application or cannot produce it, he loses any means of defence. Note, however: this is not a reversal of case law, but a confirmation of the constant position of the Court of Cassation. Already in 2014 (Civ. 3e, 9 July 2014, No. 13-20.124), it had held that the tacit permission has the same content as the application, and that it is for the applicant to demonstrate it.

What few people know is that the tacit permission does not give a blank cheque. It authorises only what was applied for in the file. If you carry out works different from your application, even if you obtain a tacit permission, you are not covered. And in the event of a control, it is for you to prove that your application was consistent with the works carried out. undefined, I have come across cases where owners had built an additional terrace without mentioning it in their application, thinking that the silence of the administration meant authorisation for everything. Grave mistake.

What This Changes for You — Concretely

This decision has very concrete implications for all real estate players. Here is what you should take away from it according to your profile.

Landlord or individual who builds: you must absolutely keep a copy of all your planning applications, including amendments. If you obtain a tacit permission, know that its content is strictly limited to what you applied for. Never assume that "silence means acceptance of everything". For example, if you apply for a 20 m² extension and you build 25 m², the tacit permission only covers the 20 m². You risk a demolition action. A concrete example: in Dax, an owner built a swimming pool without declaring it in his application for amending permission. The tacit permission obtained for a conservatory did not cover the pool. He had to demolish it at his own expense, costing €15,000 in works.

Buyer of a property: before buying, check that all permissions (initial and amending) are in order. Ask the seller to provide you with the application files. If he cannot prove the content of the tacit permissions, you could inherit non-compliant works and be ordered to regularise them. Have yourself assisted by a lawyer specialised in property law to analyse the risks.

Property developer or builder: you must be particularly vigilant. When you apply for an amending permission, keep a written record of all documents. If you work on several plots, ensure that each modification is the subject of a separate application. In the event of a dispute, you will have to prove the content of each tacit permission. Do not neglect this burden of proof: an order to restore the property can cost hundreds of thousands of euros.

Co-owner or neighbour: if you suspect non-compliant works at a neighbour's, know that it is for him to prove that his tacit permission covers the works. You can therefore require him to produce his initial application. If he refuses, you can take the matter to court. This decision makes your task easier, because the owner cannot hide behind a tacit permission without demonstrating its content.

If you are in this situation, you must act quickly. The limitation period for planning offences is 6 years from completion of the works (Article L. 480-17 of the Town Planning Code). After this period, it is too late to demand demolition, but you can still obtain damages if you suffer harm (loss of view, overshadowing, etc.).

Four Tips to Avoid This Type of Dispute

• Systematically keep a copy of your planning application and all ancillary documents (plans, photos, notices). Do not rely on the town hall: in case of loss, it is for you to prove the content. Scan your documents and store them online.
• Have a completion certificate prepared by a chartered surveyor or architect. This certificate, accompanied by as-built plans, will demonstrate that the works carried out correspond to the application. It can be produced in court as evidence.
• In case of modification during the works, submit a new amending permission, even if the modifications are minor. The tacit permission is not a safety net: if you do not apply, you will not be covered. And if you apply, keep a dated copy.
• Before acquiring a property, require the seller to provide all permissions and their application files. Have a specialised lawyer verify that the constructions are compliant. A clause of guarantee for hidden defects can be inserted in the sale deed.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This decision is part of a consistent jurisprudential trend. The Court of Cassation had already held, in a judgment of 9 July 2014 (No. 13-20.124), that "the tacit planning permission has the same content as the application submitted by the applicant". More recently, in a judgment of 10 March 2021 (No. 19-23.102), it specified that the applicant must prove that his application was complete and compliant with planning rules. If the application is incomplete, the tacit permission is null and void.

This case law favours legal certainty: it prevents an owner from relying on a tacit permission for works he never applied for. But it imposes an administrative rigour that many individuals are unaware of. In the future, courts are likely to be even stricter on the burden of proof. It is therefore essential to be assisted by a professional (lawyer, architect) from the moment the application is submitted, especially for complex projects.

For real estate professionals in Mont-de-Marsan and Dax, this decision is a useful reminder: never neglect the administrative phase. A tacit permission is not a "permission to do anything". It is a document that strictly authorises what was applied for, and nothing more.

What You Absolutely Must Remember

FAQ:

1. Q: Is a tacit permission as strong as an express permission? A: Yes, it has the same legal value, but its content is limited to the application. You must prove what you applied for.
2. Q: What if I no longer have my planning application? A: You can request a copy from the town hall (planning department). But if the town hall has not kept it, you may not be able to prove the content of the tacit permission. Better to be safe than sorry.
3. Q: Can I be ordered to demolish if I have a tacit permission? A: Yes, if you cannot prove that the works correspond to the application. This is exactly what happened to Mr B.
4. Q: What is the time limit to act against non-compliant construction? A: 6 years from completion of the works for criminal offences. For a civil action (restoration), the time limit is 5 years from knowledge of the damage.
5. Q: Do I need to hire a lawyer to apply for permission? A: It is not mandatory, but strongly recommended for complex projects. A specialised lawyer will help you build a solid file and avoid pitfalls.

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 →