Servitude of public utility: a planning permission does not protect you

Imagine: you have just bought a plot of land in Antibes, near the sea. You obtain planning permission, you build your dream villa. A few months later, an oil pipeline runs under your garden. The operating company demands the demolition of your house because it is built on a servitude of public utility (a legal constraint imposed for the public interest). "But I have planning permission!" you cry. Alas, the French Supreme Court answers: the permission does not protect you. A decision from 1984, still relevant today, reminds that any permission is granted subject to the rights of third parties, including servitudes. What to do? This article explains everything.

The facts: a story like many that happen every day

Mr X, a landowner in Antibes, buys a plot. He obtains planning permission and builds a building. However, this land is crossed by a pipeline used for transporting hydrocarbons, protected by a servitude of public utility. The operating company asks him to demolish the building or obtain a derogation (a special authorisation) to adapt his project to the servitude. Mr X turns against his notary, claiming that the latter did not inform him of the existence of this servitude. He reproaches him for a breach of his duty to advise (obligation to inform and advise the client). The Court of Appeal (second instance court) appoints an expert to determine whether the construction must be demolished. But the French Supreme Court (the highest French court) intervenes: it says that the lower court judges (the magistrates who judge the facts) did not need to ask this question. They could directly find that the construction was built in disregard of the servitude and that the damage (the harm suffered) was certain. The planning permission changes nothing. The case therefore bounced back: the notary had to answer for his fault.

The reasoning of the court — analysed

The French Supreme Court relies on a fundamental principle: a planning permission is always granted subject to the rights of third parties (persons who could be affected by the construction) and in particular subject to the existence of a planning servitude. In other words, the permission does not give you an absolute right to build anywhere. It gives way to a servitude of public utility (a legal constraint for the public interest, such as the passage of a pipeline). Consequently, the holder of the permission cannot override such a servitude. In this case, the Court of Appeal had asked an expert to determine whether the construction should be demolished. But the French Supreme Court considers that this question was unnecessary: as soon as the construction disregards a servitude of public utility, the damage is established. The notary, who had not informed his client of the servitude, committed a fault engaging his liability (obligation to compensate the damage) on the basis of article 1240 of the Civil Code (ex-art. 1382): "Any act whatever of man which causes damage to another obliges him by whose fault it occurred to repair it." Planning permission does not prevent this action. The decision confirms previous case law: permission is never an absolute guarantee. It is a consistent solution, not a reversal. The judges thus rejected the notary's argument that attempted to make his liability depend on the validity of the permission.

What this changes for you — concretely

For owners: if you buy land, always check the existence of servitudes of public utility (pipeline, power lines, railways, etc.). Planning permission does not protect you. You could be forced to demolish your construction at your own expense. Example: in Le Cannet, an owner had to demolish a garage built on a servitude for the passage of electrical cables. Cost: €15,000 for demolition, not including legal costs. For tenants: if you rent a property located on a servitude, you could suffer nuisances (works, restrictions). You can ask the landlord for explanations. For buyers: before signing a preliminary contract, have a servitude report prepared by your notary. Servitudes of public utility are often mentioned in planning documents (PLU, local planning plan) or available at the town hall. If you are in this situation, you must: 1) stop the works if possible, 2) consult a lawyer lawyer, 3) bring a liability action against the notary or the seller for failure to inform. The time limit to act is 5 years from the discovery of the damage. The amounts at stake can be considerable: demolition, loss of property value, relocation costs.

Four tips to avoid this type of dispute

• Check servitudes before buying: ask the seller or your notary for a planning certificate (document listing applicable rules) and consult your commune's PLU. In Antibes, the PLU mentions servitudes related to pipelines and power lines.
• Have a legal diagnosis carried out: a lawyer can analyse the risks. This costs between €300 and €800, but can save you a €50,000 demolition.
• Do not rely solely on planning permission: as the Court says, permission is always subject to the rights of third parties. Even if the administration grants it, a servitude can block your project.
• If in doubt, suspend works: if you discover a servitude after starting, stop everything. Engage a lawyer to negotiate a derogation or compensation. Haste worsens your situation.

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Further reading: related case law and developments

This 1984 decision is part of a consistent line: planning permission does not confer a right to build contrary to servitudes. This principle is found in a Conseil d'État judgment of 13 July 1965, which specifies that permission is granted subject to the rights of third parties. More recently, the French Supreme Court extended this rule to conventional servitudes (between neighbours) in a judgment of 12 May 2021 (n° 19-22.105). The trend is clear: judges protect servitudes, even if this goes against a permission. For the future, expect this rule to be reinforced, particularly with the rise of renewable energies (wind turbines, solar panels) which create new servitudes. What few people know: planning permission can be annulled by the administrative judge, but even if it is valid, it does not prevail over a servitude. In short, your only protection is prior verification.

What you absolutely must remember

FAQ:

1. Can I build on a servitude if I have planning permission? No. Permission is granted subject to the rights of third parties. You must respect the servitude, on pain of demolition.

2. What should I do if I discover a servitude after building? Consult a lawyer. You can request a derogation from the servitude or bring an action against the seller or notary for failure to inform. The time limit is 5 years.

3. Is the notary liable? Yes, if he did not inform you of the servitude. He engages his professional liability. You can claim damages.

4. What are the financial risks? Demolition can cost tens of thousands of euros. Not to mention the loss of property value and legal costs.

5. Can I obtain compensation? Yes, if you prove fault (seller, notary, etc.). But you will not be compensated by the administration that granted the permission, as it is not responsible for servitudes.

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