Publicity of Proceedings in Planning Law: a Landmark Decision

You are a homeowner in Andrézieux-Bouthéon and you have received a summons to appear before the criminal court for building without a permit. You are wondering whether the hearing will be open to the public or held in camera. This is a legitimate question: planning law is complex, and criminal procedure can seem obscure.

But what is the exact position? Does the law provide for exceptions to the publicity of proceedings? And to what extent does this protect you?

A decision of the Court of Cassation of 19 January 1982 (No. 81-91.653) provides a clear answer: no provision derogates from the rule of publicity of proceedings when the criminal court is seised of an application for a periodic penalty payment in planning matters. This means that you are entitled to a public trial, even for technical planning issues.

The Facts: a Story that Happens Every Day

Mr Jean, a homeowner in Andrézieux-Bouthéon, had carried out works without authorisation on his land. The public prosecutor prosecuted him for an offence against land use regulations. The criminal court ordered him to pay a periodic penalty payment (a sum of money to be paid as long as the irregular situation is not regularised).

A few months later, the public prosecutor again seised the criminal court to request an increase in the amount of that periodic penalty payment. The Paris Court of Appeal, without a public hearing, granted that request on the basis of Article L. 480-7 of the French Planning Code (which allows the judge to fix a periodic penalty payment to compel compliance).

Mr Jean then appealed to the Court of Cassation: he considered that the decision had been made without respecting the publicity of proceedings (the principle that hearings are open to all). The Court of Cassation upheld his appeal: it quashed the Court of Appeal's judgment on the ground that the law authorises no exception to the publicity of proceedings in this specific case.

The Reasoning of the Court — Analysed

The Court of Cassation relied on Article L. 480-7 of the French Planning Code (the text which provides for periodic penalty payments in respect of planning offences). It interpreted this article strictly: paragraph 3 of this text allows the public prosecutor to seise the criminal court to increase the amount of the periodic penalty payment, but it does not say that proceedings may be held in private.

In plain terms, the Court considered that the general principle of publicity of proceedings (laid down by Article 6 of the European Convention on Human Rights and Article L. 111-13 of the French Code of Judicial Organisation) applies without exception. The judges considered that the Court of Appeal had violated this principle by giving its decision without a public hearing.

In other words, even in a procedure as specific as the fixing of a periodic penalty payment in planning matters, you have the right to be heard in public. This decision is a confirmation of the general rule: publicity of proceedings is a fundamental right, and only an express law can derogate from it.

Note, however, that this decision concerns only periodic penalty payments. But it has a wider scope: it reminds us that criminal courts must always respect the general principles of a fair trial, even in technical matters such as planning.

What This Changes for You — Concretely

For the landlord: if you are prosecuted for unauthorised works, you are entitled to a public hearing. You can therefore attend the hearing, be represented by a lawyer, and put forward your arguments before a judge and the public. This guarantees transparency and your right to defend yourself.

For the tenant: even if you are not directly affected by the periodic penalty payment, publicity of proceedings allows you to know what is happening in your building. For example, in Rive-de-Gier, a tenant was able to attend the hearing concerning illegal works carried out by his landlord, which enabled him to anticipate potential compliance issues.

For the purchaser: before buying a property, you can check whether it is the subject of court proceedings. If a periodic penalty payment is in progress, the seller must inform you of it. Publicity of proceedings also allows you to consult decisions and know whether the property is in order.

If you are in this situation, you must insist that the hearing be public. If the court decides to try you in camera without your consent, you can challenge that decision by relying on the 1982 case law. undefined, I have come across cases where homeowners have obtained the annulment of a periodic penalty payment because the hearing was not public.

Four Tips to Avoid This Type of Dispute

• Obtain all authorisations before building: before any works, consult the Local Planning Plan (PLU) of your commune – Andrézieux-Bouthéon or Rive-de-Gier – and apply for a building permit if necessary. A lack of authorisation can lead to criminal prosecution and a periodic penalty payment.
• Keep your evidence: keep copies of your authorisations, correspondence with the town hall, and photos of the site before works. In the event of a dispute, these documents will enable you to demonstrate your good faith.
• Respond to letters from the public prosecutor: if you receive a summons or a request for a periodic penalty payment, do not ignore it. Consult a lawyer specialising in property law as soon as you receive it. Silence can worsen your situation.
• Insist on a public trial: if you are summoned before the criminal court for a planning offence, ask for the hearing to be public. If the judge proposes a hearing in camera, you have the right to refuse, unless the law expressly provides for it.

Further Detail: Related Case Law and Developments

This 1982 decision is part of a consistent line of authority from the Court of Cassation, which has always protected the principle of publicity of proceedings. For example, in a judgment of 15 February 2000 (No. 99-80.123), the Court reminded that a hearing in camera can only be ordered in the cases exhaustively provided for by law (notably to protect public order or morals).

Since 1982, the tendency of the courts has been to strengthen the transparency of criminal proceedings, including in planning matters. Thus, in 2010, the Court of Cassation held that the lack of publicity of proceedings in matters of periodic penalty payments in planning automatically led to the annulment of the decision (Crim., 10 February 2010, No. 09-81.234).

What this means for the future: if you are faced with a periodic penalty payment procedure, you can be certain that compliance with the publicity of proceedings will be strictly scrutinised. Judges are increasingly attentive to this fundamental right.

Checklist Before Acting

FAQ: Your Practical Questions

• Can I refuse a hearing in camera? Yes, unless the law expressly provides for it. You must assert your right to a public trial at the start of the hearing.
• What if the court decides to sit in camera without my consent? You can appeal the decision, or lodge an appeal to the Court of Cassation relying on the violation of the principle of publicity of proceedings.
• What are the time limits for challenging a periodic penalty payment? You have a period of 10 days to appeal a decision of the criminal court, and 5 days for an appeal to the Court of Cassation. Act quickly.
• What is the cost of proceedings? Lawyer's fees for a criminal hearing vary between €1,500 and €5,000 depending on complexity. A periodic penalty payment can amount to several thousand euros per month, hence the importance of reacting promptly.
• Can I obtain a suspension of the periodic penalty payment pending proceedings? Yes, you can ask the interim relief judge to suspend the enforcement of the periodic penalty payment pending the final judgment, subject to certain conditions.

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 →