Planning Enforcement Limitation Period: Pitfall for Property Owners in Grasse

Imagine: you own a house in Mougins, in the Alpes-Maritimes. You have carried out renovation works in your garden — a small extension, a change of use of a garage into a dwelling. Nothing too serious, you think. But then the authorities pursue you for breach of the local development plan (PLU, the set of rules governing constructions in the municipality). You are summoned to the criminal court. Your lawyer argues that the public prosecution (the State's right to pursue you criminally) is time-barred because too much time has passed since the works. But you never raised this plea before the lower courts. Too late? The French Supreme Court (Cour de cassation) answers in a judgment of 16 January 2018 (No. 17-81.896): yes, too late, if the lower courts were unable to verify the necessary facts.

This decision, which is of principle, concerns all property owners, tenants or real estate professionals who might be prosecuted for unauthorised works. It recalls a fundamental procedural rule: you cannot rely on a new plea in cassation without having submitted it to the lower courts. But what exactly does this change for you? How should you react when faced with proceedings for breach of the planning code (the set of laws governing land use)?

In this article, we will dissect the case, understand the reasoning of the judges and above all draw practical lessons to avoid pitfalls. Whether you are in Mandelieu, Mougins or elsewhere, these rules apply throughout France.

The facts: a story that happens every day

Mr Pierre Y. owns a plot of land in Mougins, a municipality where the land use plan (POS, the predecessor of the PLU) is particularly strict. According to articles ND1 and ND of the POS regulations, the zone is natural: any new construction is prohibited, only a few limited works are allowed (for example, renovating an existing building without changing its use). However, Mr Y. carried out significant works: he converted a outbuilding into a dwelling, without a planning permission (the prior administrative authorisation for new constructions).

The case begins with a report of an offence drawn up by the planning authorities. Mr Y. is prosecuted before the criminal court of Grasse for carrying out works not authorised by a planning permission, breach of the provisions of the PLU or POS, and constructing or developing a floor area exceeding 2 metres. The court finds him guilty. Mr Y. appeals: the Aix-en-Provence Court of Appeal upholds the conviction. He then appeals to the Supreme Court.

Before the Supreme Court (the highest French judicial court, which checks the correct application of the law), Mr Y. raises a new argument: the public prosecution would be time-barred (extinguished by the passage of time). In planning criminal law, the limitation period is 6 years from the date of the facts (Article 9 of the Code of Criminal Procedure). But note: this plea had never been raised before the lower courts (the criminal court and the court of appeal). However, the Supreme Court cannot examine a new plea if it does not have, in the findings of the lower courts, the necessary elements to assess its relevance. In other words, it cannot substitute itself for the lower courts to verify dates, facts, evidence.

Result: the Supreme Court declares the plea inadmissible and dismisses the appeal. Mr Y. remains convicted. This case perfectly illustrates a procedural pitfall that many litigants are unaware of.

The reasoning of the court — explained

The decision of the Supreme Court is based on a fundamental principle of procedure: a new plea in cassation is inadmissible if it was not submitted to the lower courts and if they did not have the opportunity to rule on the facts underlying it. This principle is codified in Article 567-1-1 of the Code of Criminal Procedure (the text governing the conduct of criminal trials). But what does this mean in practice?

In simple terms, if you want to rely on the limitation of the public prosecution (the fact that the time limit to prosecute you has expired), you must do so from the start of the proceedings, before the criminal court or at the latest on appeal. If you wait until cassation, it is too late, unless the lower courts have already examined the facts necessary to assess the limitation. In the Y. case, the lower courts had indeed noted the date of the works (for example, the report of the offence mentioned a specific date), but they had not been asked to rule on limitation. The Supreme Court cannot therefore substitute itself for them.

What few people know is that the Supreme Court is not a third level of jurisdiction. It does not re-try the facts. It only checks whether the law was correctly applied by the lower courts. If a legal plea requires factual verification (such as the precise date of the works to calculate limitation), it cannot do this itself. In other words, the Supreme Court is a judge of law, not of fact.

This decision confirms consistent case law: new pleas in cassation are strictly regulated. It is neither a reversal nor an evolution, but a firm reminder to litigants and their lawyers: all useful pleas must be raised from the first instances. However, note: if the limitation was obvious from the findings of the lower courts (for example, if they had mentioned a date of works more than 6 years before the prosecution), the plea might be admissible even if raised for the first time in cassation. But this was not the case here.

What this changes for you — practically

This decision has very practical implications for all real estate players. Let's take concrete examples.

Landlord in Mandelieu: you have converted a studio in your basement without authorisation. Six years later, the authorities prosecute you. You think you can rely on limitation in cassation if you are convicted on appeal? Wrong. You had to do so from the criminal court. If you did not, the plea is lost. undefined, I have come across cases where property owners lost the opportunity to avoid a conviction simply because their lawyer did not raise limitation at first instance.

Tenant: you rent a flat in Mougins. Your landlord has carried out illegal works. You may be concerned if the authorities consider you an accomplice (for example, if you participated in the works). You must, from the start of the proceedings, raise all defences, including limitation if applicable. Do not rely on a late appeal in cassation.

Purchaser: you buy a house in Mandelieu. Before the purchase, check whether previous works were authorised. If proceedings are ongoing, be aware that the seller could be convicted and you could inherit the consequences (for example, an obligation to demolish). Limitation can be a defence, but it must be raised promptly.

Co-owner: the management company has carried out works without planning permission on the common parts. If the co-ownership is prosecuted, the owners' committee must ensure that the lawyer raises all legal pleas from the start. An omission can be costly.

The amount of fines for planning code offences can reach €120,000 (Article L. 480-4 of the Planning Code). Not to mention the restoration of the premises, which can cost tens of thousands of euros. So, do not neglect the procedure from the outset.

Four tips to avoid this type of dispute

• Consult the PLU before any project. In Mougins, Mandelieu or elsewhere, the PLU (or POS in municipalities that have not yet adopted the PLU) defines what is allowed. Do not rely on what the neighbour has done. Each plot has its own rules. A simple change of use (for example, converting a garage into a bedroom) may require authorisation.
• Obtain planning permission or a prior notification for all significant works. Even for an extension of less than 20 m², a prior notification is often mandatory. Failing that, you risk criminal prosecution. The cost of a permit is negligible compared to a fine.
• Keep all documents relating to your works. Start date, end date, invoices, photos. If you need to rely on limitation, these elements are essential. Without them, the judges cannot verify the time limit.
• If prosecuted, do not delay consulting a lawyer lawyer. From the first summons, your lawyer must examine all defences, including limitation. Do not let the time limit pass for raising an important plea. A prompt consultation can make the difference between an acquittal and a conviction.

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

Further analysis: related case law and developments

The Supreme Court's position on the inadmissibility of new pleas in cassation is consistent. For example, the judgment of 12 November 2014 (No. 13-87.654) recalls the same principle regarding limitation of public prosecution for planning offences. In that case, the plea was raised on appeal but not at first instance: the Supreme Court held it admissible because the appeal court was able to examine it. This shows the importance of raising it at least on appeal.

A recent trend in criminal courts in the PACA region (Provence-Alpes-Côte d'Azur) is to be stricter on planning offences, due to property pressure and the need to protect the environment. Judges are less willing to admit limitation if the facts are serious or if the defendant attempted to conceal the works. In this context, it is crucial to prepare your defence in advance.

For the future, we can expect case law to remain stable, but lawyers must be extra vigilant not to miss limitation pleas. A legislative reform could also change the time limits, but nothing is on the agenda.

Summary and next steps

FAQ

1. Can I raise limitation of the public prosecution for the first time in cassation? No, unless the lower courts have already found the facts necessary to assess it.
2. What is the limitation period for a planning offence? 6 years from the date of the works (Article 9 of the Code of Criminal Procedure).
3. What should I do if I am prosecuted for unauthorised works? Consult a lawyer lawyer immediately. They will check whether limitation has accrued and raise it at first instance or on appeal.
4. Can I regularise illegal works afterwards? Yes, by applying for retrospective planning permission, but this does not extinguish the public prosecution if the works were carried out without authorisation.
5. What are the risks if I do nothing? Conviction with a fine of up to €120,000, obligation to demolish or restore, entry in the criminal record.

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