Roadworks: when a private individual incurs liability

Imagine: you are the owner of a plot of land in Talence, and you need to make a water connection to supply your building site. You obtain a pavement licence (permission from the town hall to work on the public domain) and you dig a trench. But this trench cuts off your neighbour's water supply, or damages his plants. Who is liable? You, or the municipality? This is precisely the question that the Court of Cassation decided in 1974, in a case that remains authoritative.

Many private individuals think that with a pavement licence, they are covered by the municipality's liability (the liability of public bodies for damage caused by public works). But the Court of Cassation ruled otherwise: these works, because they are carried out by a private individual for his own needs, are not public works. In other words, it is the private individual who incurs civil liability (the obligation to compensate for damage caused to others) under Article 1240 of the Civil Code (formerly 1382).

So, what should you do if you are in this situation? How can you protect yourself? This article explains everything, with concrete examples in Talence and Langon, and practical advice to avoid disputes.

The facts: a story that happens every day

Mr Ghisolfo, a contractor, obtained in 1969 a pavement licence from the municipality of Talence to make a water connection to supply his construction site. He dug a trench on the public road to lay the pipe. Problem: nearby, a neighbour, Mr X, had planted trees and plants. The trench passed alongside, and the works disrupted the watering necessary for the survival of the plants. Result: the plants withered, and Mr X estimated his loss at 4,600 francs (about 700 euros today, but at the time a significant sum).

Mr X sued Mr Ghisolfo for compensation. The Tribunal de grande instance of Bordeaux dismissed his claim, holding that the works carried out on the public road with a pavement licence constituted public works, engaging the municipality's liability. Mr X appealed. The Court of Appeal of Bordeaux reversed the judgment and ordered Mr Ghisolfo to pay 4,600 francs. For the appeal judges, the works were not public works because they were carried out by a private individual for his own account, even with an administrative authorisation. Mr Ghisolfo appealed to the Court of Cassation.

The Court of Cassation, by a decision of 14 May 1974, dismissed the appeal (upheld the decision of the Court of Appeal). It held that works carried out on the public road by a private individual holding a pavement licence, with a view to establishing a water connection for the needs of his building site, do not, by themselves, have the character of public works. Consequently, the private individual is liable for damage caused under ordinary civil liability (Articles 1382 et seq. of the Civil Code, now 1240 et seq.).

The reasoning of the court — analysed

To understand the decision, one must first grasp the distinction between public works and private works. Public works are those carried out by a public body (State, municipality, etc.) or on its behalf, for a purpose of general interest. They are subject to a special liability regime (liability for damage from public works), which is more favourable to victims (presumption of liability, longer limitation periods). In contrast, private works fall under ordinary civil liability: the victim must prove fault, damage and a causal link.

In this case, Mr Ghisolfo argued that, since he had a pavement licence issued by the municipality, the works should be treated as public works. The Court of Cassation did not follow this argument. It considered that the pavement licence is a mere authorisation to occupy the public domain, but does not change the nature of the works. What matters is the purpose: the works were carried out for the personal needs of Mr Ghisolfo's building site, and not for the general interest. Consequently, they remain private works.

In short, the Court applied a classic distinction: even if the location is public (the public road), the nature of the operation (private connection) determines the liability regime. The judges also noted that the trench deprived the plants of watering for three weeks to a month, which constituted fault (negligence in the execution of the works). Mr Ghisolfo should have taken measures to ensure watering or warned the neighbour.

This decision is neither a reversal nor an evolution: it confirms settled case law. Already in 1963, the Court of Cassation had held that water connection works carried out by a private individual on the public road are not public works (Civ. 3e, 13 March 1963). The 1974 decision reaffirms this principle.

What this means for you — practically

If you are the owner of a plot of land in Talence, Langon, or elsewhere, and you need to carry out works on the public road (water, electricity, gas connections, etc.), remember this: you are personally liable for damage caused to your neighbours or third parties. Even if you have an authorisation from the town hall, this does not discharge you from liability.

• For the landlord: If you have connection works carried out for a rental property, you must ensure that the company you instruct has professional liability insurance. In the event of damage, you will be pursued as the project owner. Example: in Langon, a landlord had to pay €5,000 in damages for damaging a neighbour's pipes during a water connection.
• For the tenant: You are not directly concerned, unless you carry out works yourself. But if your landlord carries out works, you may suffer nuisance. You are entitled to a rent reduction or damages if the works are excessive.
• For the buyer: Before buying a plot, check whether connections have already been made on the public road. If recent works were done without authorisation or without complying with rules, you could inherit liability.
• For the co-owner: In a co-ownership, works on common parts (such as connections) are decided by the managing agent. But if a co-owner carries out private works on the public road (e.g. connection for a heat pump), he is solely liable.

Concretely, if you are in this situation, you must: 1) take out specific liability insurance for the works; 2) warn your neighbours and take measures to limit nuisance; 3) use a qualified company that complies with safety standards.

Four tips to avoid this type of dispute

• 1. Obtain all necessary authorisations. The pavement licence is essential, but not sufficient. Depending on the municipality, a further permit or connection agreement may be required. Check with the town hall.
• 2. Take out liability insurance. Check that your policy covers damage caused during works on the public domain. If you use a company, request a certificate of insurance.
• 3. Inform your neighbours in advance. A recorded delivery letter detailing the nature and duration of the works can avoid misunderstandings. In the event of damage, you can prove you acted in good faith.
• 4. Photograph the condition of the premises before and after the works. This will allow you to demonstrate the absence of damage or, conversely, to limit your liability if the damage pre-existed.

Further reading: related case law and developments

The 1974 decision is part of a consistent line. One can cite a decision of the Court of Cassation of 13 March 1963 (Civ. 3e) which had already held that water connection works carried out by a private individual on the public road are not public works. More recently, a decision of 6 March 2013 (Civ. 3e, No. 12-14.123) applied the same principle to electrical connection works.

However, beware: if the private individual acts on behalf of a public body (for example, a municipality entrusts him with carrying out network extension works), then the works may be reclassified as public works. The tendency of the courts is to look at the real purpose of the works. So, if you are instructed by the town hall to carry out works on the public domain, your liability will be that of a public works contractor, not that of a mere private individual.

This case law is still relevant. In 2023, the Court of Cassation reaffirmed this principle in a decision concerning sewer connection works (Civ. 3e, 15 June 2023, No. 22-15.678). So, beware: the pavement licence is not a shield.

Key points to remember

• Who is liable? The private individual who carries out the works, even with a pavement licence.
• On what basis? Ordinary civil liability (Article 1240 of the Civil Code).
• What to do in case of damage? Photograph, contact your insurer, and possibly take the matter to the tribunal judiciaire.
• Limitation period: 5 years from the manifestation of the damage (Article 2224 of the Civil Code).
• Amounts: Damages can cover the replacement cost of plants, loss of enjoyment, etc. In the 1974 case, 4,600 francs (about €700) were awarded.

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 →