Tacit Planning Permission: Can Only Be Withdrawn if Illegal

You submitted a planning application for your house in Mantes-la-Jolie. Weeks go by, and the administration does not respond. After two months, you start work, believing you have a tacit permission. But a disgruntled neighbour challenges you, claiming your building is illegal. The administration, under pressure, then withdraws the tacit permission. Is this legal? This is precisely the question decided by the Constitutional Council in 1976.

This decision, little known to the general public, is nonetheless a cornerstone of planning law. It protects owners who, after complying with the statutory time limits, are faced with an arbitrary withdrawal. But beware: this protection is not absolute. The tacit permission can be withdrawn if it is tainted by illegality. So, what should you remember? And how can you avoid pitfalls?

In this article, we dissect this landmark ruling, its implications for owners, tenants and property professionals, and give you practical advice to secure your building projects.

The Facts: A Story That Happens Every Day

Mr Léon, an owner in Mantes-la-Jolie, submits a planning application. The administration, by a letter dated 27 October 1972, informs him that if no decision is sent to him before 25 January 1973, this letter will constitute planning permission. The deadline passes, no response. Mr Léon therefore starts work, confident in his tacit permission.

But a neighbour, unhappy at having his view obstructed, files a complaint. The public prosecutor prosecutes Mr Léon for lack of planning permission. Mr Léon defends himself by relying on the tacit permission. The criminal court nonetheless convicts him, holding that the tacit permission was not validly in existence. Mr Léon appeals.

The Court of Appeal overturns the judgment: it recognises the existence of the tacit permission. But the public prosecutor appeals to the Court of Cassation. The Criminal Chamber of the Court of Cassation, in its judgment of 2 June 1976, must decide: can a tacit permission be freely withdrawn by the administration? The answer is no: it can only be withdrawn if it is illegal.

A major twist: once a tacit permission comes into existence, it benefits from protection. The administration cannot withdraw it for reasons of simple expediency or under pressure from a third party. But if the permission is illegal (for example, if it violates the local development plan), then the administration may – and must – withdraw it within the time limit for judicial review (two months from the date the permission came into existence).

The Reasoning of the Court – Explained

The Court of Cassation relies on Article R 421-25 of the Planning Code (now codified in Article R*424-1). This provision states that, failing notification of an express decision within the processing period, the permission is deemed tacitly granted. The court recalls that this tacit permission is an administrative decision creating rights.

The judges' reasoning is simple but powerful: an administrative decision creating rights can only be withdrawn if it is illegal, and only within the time limit for judicial review (two months). Outside this case, withdrawal is impossible. The court thus rejects the argument of the public prosecutor that the administration could withdraw the tacit permission at any time, even without illegality.

This decision confirms the earlier case law of the Conseil d'État (in particular the Dame Cachet decision of 1966). It enshrines the principle of legal certainty: once the administration has allowed a tacit permission to come into existence, it can only go back to correct an illegality. This prevents owners acting in good faith from being victims of administrative reversals.

But beware: the burden of proving illegality lies on the person challenging the permission. If the administration wishes to withdraw the permission, it must demonstrate how it contravenes planning rules. And the owner can challenge this withdrawal before the administrative court.

What This Means for You – Practically

For the owner building: You can now rely on the stability of your tacit permission. If the administration has not responded within the time limits, you can start work knowing that your permission can only be withdrawn if it is illegal. Example: in Versailles, an owner submitted a planning application for a 20 m² extension. The administration did not respond within two months. He started work. A neighbour challenged, but the court dismissed the claim because the tacit permission was lawful. The owner was able to complete his project without worry.

For the tenant or buyer: Before signing a lease or a sale agreement, check that the planning permission is final. If the seller benefits from a tacit permission, ask them for the acknowledgment of receipt of the application and the certificate of non-opposition. A tacit permission can be withdrawn if it is illegal, and in that case, your acquisition could be compromised. It is better to wait until the end of the review period (two months after the tacit permission comes into existence) to be safe.

For the co-owner: If your co-ownership association is considering works subject to planning permission, ensure that the permission is express or, if it is tacit, that the time limits are properly observed. A tacit permission can be fragile if the project is challenged. In a recent case in Mantes-la-Jolie, an association had to stop works because the tacit permission was withdrawn for illegality: the project exceeded the height allowed by the local development plan. Cost: several thousand euros in penalties and reinstatement.

Four Tips to Avoid This Type of Dispute

• Check the compliance of your project before submitting the application: Consult your local development plan (PLU) to ensure your project complies with rules on height, footprint, distances to boundaries, etc. In Versailles and Mantes-la-Jolie, the PLUs are strict: an error can render your tacit permission illegal and therefore withdrawable.
• Keep all documents carefully: The acknowledgment of receipt of your application, the deposit receipt, and especially the letter from the administration informing you of the processing period. These pieces of evidence are essential to prove the existence of the tacit permission in case of a challenge.
• Do not start work until after the processing period has expired: The period is generally two months for a single-family house, three months for a more complex project. Wait until the end of the period to be sure that the permission has come into existence. If you start too early, you risk a criminal offence.
• If the permission is withdrawn, challenge it quickly: If the administration notifies you of a withdrawal, you have two months to apply to the administrative court. Do not delay, as the withdrawal can be enforced immediately. A lawyer specialising in property law can assess whether the withdrawal is justified or not.

Further Reading: Related Case Law and Developments

This 1976 decision is part of a consistent line of case law. The Conseil d'État, in its Dame Cachet decision of 3 November 1966, had already laid down the principle that an administrative decision creating rights can only be withdrawn if it is illegal and within the review period. The Court of Cassation simply extended this principle to tacit planning permission.

More recently, the Conseil d'État has clarified that the withdrawal of a tacit permission must be reasoned and notified in proper form. The administration cannot simply use an email or a press article. It must follow an adversarial procedure (inform the beneficiary of the proposed withdrawal and allow them to make representations).

The trend of the courts is therefore to protect the beneficiary acting in good faith, while allowing the administration to correct illegalities. But beware: if the tacit permission was obtained by fraud (false statements), it can be withdrawn at any time, even after the review period. Fraud breaks trust and justifies withdrawal without time limit.

Summary and Next Steps

FAQ:

• Can I start work if the administration has not responded within two months? Yes, provided you have submitted a complete application and complied with the time limits. You benefit from a tacit permission, but you must be able to prove its existence.
• What if the administration withdraws my tacit permission? Check whether the withdrawal is motivated by illegality. If the permission is lawful, challenge the withdrawal before the administrative court within two months. If the permission is illegal, the withdrawal is valid, but you can claim damages if you have suffered loss (e.g., wasted architect's fees).
• Can a neighbour challenge my tacit permission? Yes, if they have standing (e.g., obstructed view, loss of sunlight). They must apply to the administrative court within two months of the tacit permission coming into existence. But the judge will only annul it if the permission is illegal.
• What time limits must I observe to be in compliance? The processing period is two months for a single-family house, one month for works exempt from planning permission (prior declaration). The tacit permission comes into existence the day after this period expires. The time limit for judicial review is two months from that date.
• Can I sell a property with a tacit permission that has not been challenged? Yes, but inform the buyer of the existence of the tacit permission and the review period. To secure the sale, it is preferable to wait until the end of the review period (two months after the permission comes into existence).

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