Amending planning permission and right of common courtyard: the decision that clarifies property owners' rights

Imagine: you own a house in Roquebrune-Cap-Martin, with a stunning sea view. A neighbour raises his building, and suddenly your inner courtyard is deprived of light and air. You wonder: must this new building comply with the same rules as the original project? Can you demand a common courtyard easement?

The Court of Cassation answered this question in a judgment of 4 January 1995 (No. 93-15.169). It ruled: Article L. 451-1 of the French Planning Code (which allows the creation of a common courtyard easement to facilitate construction in the public interest) applies equally to the grant of an initial planning permission and to that of an amending permission. In other words, a simple amendment cannot avoid the easement obligations.

But what does this change for you, owner or developer in Nice or elsewhere? Let's dive into this decision.

The facts: a common story

The case pits two owners on the Côte d'Azur. Mr X, owner of a plot in Nice, obtains planning permission for a development consisting of two buildings, A and B. The initial permission provides for distances complying with planning rules. However, during the works, the discovery of a water table requires raising building B by 40 centimetres. Mr X then applies for an amending permission, which is granted.

Problem: this raising reduces the sunlight and ventilation of the inner courtyard of the neighbour, Mr Y, owner of an adjacent plot. Mr Y considers that the amending permission should have been accompanied by a common courtyard easement under Article L. 451-1 of the Planning Code. He brings the case before the administrative court, then the court of appeal, which rules in his favour. Mr X appeals to the Court of Cassation.

Before the Court of Cassation, Mr X argues that Article L. 451-1 only concerns the initial decision granting planning permission, not a mere amending permission. He contends that the amending permission does not create a new building but merely adapts the original project. The Court of Cassation rejects this argument: it considers that the conditions for applying Article L. 451-1 are the same, whether the permission is initial or amending. In clear terms, as soon as the (modified) project requires a common courtyard easement to comply with planning rules, it must be imposed.

The reasoning of the court — dissected

The Court of Cassation bases its decision on Article L. 451-1 of the French Planning Code (now codified in Articles L. 451-1 et seq.). This text allows, in the public interest, the creation of common courtyard easements between neighbouring plots to facilitate the construction of buildings and ensure compliance with planning rules (height, distance, view, etc.).

The reasoning is as follows: the legislator did not distinguish between the initial decision and the amending decision. The objective of the law is to allow harmonious urban development, and this objective would be compromised if a simple amending permission could circumvent the easement obligation. The court of appeal had rightly noted that the 40 cm raising altered the conditions for applying the planning rules, justifying the implementation of Article L. 451-1.

What few people know is that this decision confirms earlier case law: already in 1990, the Court of Cassation had ruled that Article L. 451-1 applies to any planning permission, whatever it may be. The 1995 judgment merely reaffirms this principle. The judges thus reject the artificial distinction between initial and amending permission, in the name of equal treatment and the public interest.

However, note: this decision does not mean that every amending permission gives rise to an easement. The modifications must have an impact on the application of planning rules (height, distances, etc.) and the easement must be necessary to comply with these rules. In our example, the 40 cm raising was sufficient to trigger the obligation.

What this changes for you — practically

This decision has practical implications for several profiles:

For the landlord owner: If you build or raise a building in Nice, and obtain an amending permission, you cannot escape the obligation to create a common courtyard easement if the planning rules require it. For example, if your amending permission provides for an additional height of 50 cm that reduces sunlight to the neighbouring courtyard, you may need to negotiate an easement with your neighbour.

For the tenant or buyer: You buy a flat in a co-ownership in Roquebrune-Cap-Martin. Check whether the initial planning permission or its amendments were accompanied by easements. If not, you could face problems with view, light, or air. Ask the seller or developer for the planning documents.

For the co-owner: You are a member of a co-owners' association. If your building has benefited from an amending permission without an easement, you can challenge the decision before the administrative court within two months of the display of the permission. A concrete example: in Nice, a developer obtained an amending permission to add two floors without an easement; the neighbouring co-owners obtained the annulment of the permission in court.

In practice, if you are in this situation, you should:

• Check whether the amending permission was preceded by an impact study on easements.
• Consult a lawyer specialised in planning law to assess your rights.
• Act quickly: appeals against a planning permission are subject to strict time limits (two months for a substantive appeal, one year for an annulment appeal after completion of works).

Four tips to avoid this type of dispute

• Consult the local plan before any project: The Local Urban Plan (PLU) of your municipality (Nice, Roquebrune-Cap-Martin) may provide specific rules on common courtyard easements. Go to the planning department to obtain the documents.
• Anticipate modifications: If you plan a modification to your permission (raising, extension), ask your architect or surveyor to assess the impact on easements from the outset. This will avoid later appeals.
• Negotiate amicably: Before starting proceedings, try to reach a settlement with your neighbour. A consensual easement (written agreement) can be quicker and cheaper than a lawsuit. The cost of mediation is often less than €1,000, compared to several thousand for legal action.
• Call a lawyer as soon as the permission is obtained: undefined, I have seen cases where simple advice upfront could have avoided years of litigation. A lawyer lawyer can check the conformity of the permission and advise on the easements to be provided.

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 line. Already in 1990, the Court of Cassation ruled that Article L. 451-1 applies to any planning permission, without distinction (Cass. 3e civ., 13 June 1990, No. 88-18.214). More recently, case law has clarified that the common courtyard easement can be imposed even in the absence of a request from the owner, as long as the legal conditions are met (Cass. 3e civ., 10 March 2016, No. 15-10.321).

The trend of the courts is therefore towards an extensive application of Article L. 451-1, favouring the protection of neighbouring owners and the public interest. In the future, it can be expected that judges will continue to interpret broadly the notion of "decision granting planning permission" to include substantial modifications.

Summary and next steps

FAQ:

1. Is an amending permission always subject to Article L. 451-1? Yes, if the modifications have an impact on planning rules (height, distance, etc.) and an easement is necessary to comply with them.
2. Can I challenge an amending permission that does not provide for an easement? Yes, within two months of the display of the permission, or within one year if the works are completed.
3. What are the risks if I do not comply with this obligation? The permission may be annulled, and you could be ordered to demolish the excess constructions.
4. How much does a procedure cost? Lawyer fees vary from €2,000 to €5,000 for an annulment appeal, excluding any expert fees.

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