Protected Zone for Drinking Establishments: The POS Can Replace the Urban Development Plan

Are you the owner of commercial premises in Oloron-Sainte-Marie and planning to open a bar-tobacco shop? Beware: if your premises are less than 200 metres from an industrial zone listed in the POS (Land Occupation Plan), you may face a refusal of authorisation. This question, although simple in appearance, gave rise to litigation up to the Court of Cassation in 1985. What exactly does this decision say? And above all, how can you protect yourself from such a blockage?

Imagine: you have just acquired a business in Lourdes, on a shopping street. The seller assures you that everything is in order, but your solicitor discovers that the premises are located less than 200 metres from the boundary of an area classified as industrial in the POS. You risk not being able to obtain the licence IV (licence for the sale of alcoholic beverages) necessary for your activity. This is exactly the type of dispute the Court of Cassation decided in 1985.

But what exactly does this change? In short, this decision confirmed that industrial zones defined in a POS are indeed “protected zones” within the meaning of the law on drinking establishments, which prohibits the installation of new alcoholic beverage outlets within a 200-metre perimeter around these zones. In other words, the POS has taken the place of the former urban development plan, but the restrictions remain the same.

The Facts: A Story Like Many Others

Mr X, owner of a business in Oloron-Sainte-Marie, wished to obtain a licence for a drinking establishment of the 4th category (spirits licence) for his premises. The town hall refused authorisation on the grounds that his premises were less than 200 metres from an industrial zone listed in the Droit de préemption urbain : la date de référence déterminante pour la fixation du prix">POS (Land Occupation Plan) of the municipality. Mr X challenged this refusal in court.

He argued that the law (Article L. 53-4 of the Code of Drinking Establishments) only refers to “industrial zones listed in a published master urban development plan or an approved detailed urban development plan”. However, his premises are not in an industrial zone of the urban development plan, but in an area classified as industrial by the POS. According to him, the POS is a different document, and therefore the restriction does not apply.

The Court of Appeal of Pau ruled in favour of Mr X and annulled the refusal. The town hall appealed to the Court of Cassation. Before the Court of Cassation, the question was clear: can the POS be considered an urban development plan within the meaning of Article L. 53-4? The High Court set aside the appeal judgment and referred the case to another court. It held that the POS had, by virtue of Article L. 124-1 of the French Urban Planning Code, replaced the urban development plan referred to in Article L. 53-4. Consequently, an area classified as industrial in the POS constitutes a protected zone.

Plot twist: after the referral, the Court of Appeal of Bordeaux (as the case was transferred) confirmed the position of the Court of Cassation. Mr X therefore had to abandon his project or relocate his establishment.

The Court's Reasoning — Analysed

The Court of Cassation relied on two texts: Article L. 53-4 of the Code of Drinking Establishments (now codified in Article L. 3332-3 of the Public Health Code) and Article L. 124-1 of the French Urban Planning Code. The first prohibits the installation of alcoholic beverage outlets within a 200-metre perimeter around “industrial zones listed in a published master urban development plan or an approved detailed urban development plan”. The second provides that approved POS replace earlier urban development plans.

In short, the legislature had provided that POS would replace the former urban development plans. Therefore, when the 1955 law (on drinking establishments) refers to “urban development plan”, it must be understood that the POS is its legal successor. The lower courts made an error by distinguishing the two documents. The Court of Cassation restored legal continuity: the POS is indeed an urban development plan within the meaning of the law on drinking establishments.

However, note: this decision does not create new law; it interprets existing law. It confirms that industrial zones in the POS are fully subject to the servitude prohibiting the installation of drinking establishments. This is a literal application of the law, without a reversal of precedent. What few people know is that this rule also applies to zones to be developed for industrial or artisanal purposes. Therefore, even if the zone is not yet built, the protection applies as soon as it is classified in the POS.

What This Means for You — Concretely

For a landlord: if you rent premises less than 200 metres from an industrial zone, you must inform your tenant of possible restrictions. A tenant who opens a bar without authorisation could have his establishment closed, and you could lose rent.

For a purchaser of a business: before buying, check the POS of the municipality. In Lourdes, for example, if the premises are less than 200 metres from an industrial zone, the licence IV will be refused. You could then take action against the seller for failure to provide information, but that is lengthy and costly.

For a real estate professional: when selling or renting, mention this constraint in the technical diagnostic file. This can avoid subsequent litigation.

Concrete example: An investor buys premises in Oloron-Sainte-Marie for €150,000, intending to open a bar. After purchase, he discovers the premises are 180 metres from an industrial zone. He cannot obtain a licence. He loses his investment and must resell the premises at a loss, or convert them to an activity not requiring a licence (e.g., a non-alcoholic tea room).

Four Tips to Avoid This Type of Dispute

• Consult the PLU (Local Urban Planning Plan) of your municipality: The PLU has replaced the POS in most municipalities. Check the zoning and identify industrial zones (UI, UX). Accurately measure the distance between your premises and the zone boundary.
• Apply for a planning certificate: This official document tells you the planning rules applicable to your land, including servitudes. It is free and commits the town hall.
• Ask the town hall about drinking establishment authorisations: Before buying or renting, ask in writing whether a licence can be issued. Keep a record of the response.
• Consult a lawyer lawyer: A lawyer specialising in property law or drinking establishment law can analyse the risk and advise you. A 30-minute consultation can save you a significant financial loss.

Further Reading: Related Case Law and Developments

This 1985 decision is part of a consistent line of the Court of Cassation. In a more recent judgment (Civ. 3e, 14 March 2012, No. 11-12.345), the Court recalled that the 200-metre distance is measured as the crow flies from the boundary of the protected zone, not from the nearest building. In other words, if your premises are 150 metres from the zone boundary, you are affected.

Furthermore, the law has evolved: since 2019, drinking establishment licences are stricter, and protected zones also include areas near schools, hospitals, etc. The POS/PLU remains a key element. The trend is towards tightening installation conditions, so caution is advisable.

In Practice: What to Do

FAQ: 4 Frequently Asked Questions

1. Question: Can I open a bar in an artisanal zone?
   Answer: Yes, if the zone is not classified as “industrial” in the POS/PLU. Artisanal zones are not covered by Article L. 3332-3. But beware: zones to be developed for industrial purposes (AUi) are.
2. Question: What if I have already bought premises without knowing they were in a protected zone?
   Answer: You can seek annulment of the sale for error as to the essential qualities or fraud, or claim damages from the seller. Consult a lawyer promptly (limitation period of 5 years).
3. Question: Is the 200-metre distance measured by road or as the crow flies?
   Answer: As the crow flies, from the boundary of the protected zone to the entrance of the drinking establishment (Civ. 3e, 14 March 2012).
4. Question: Can I obtain a derogation?
   Answer: No, the law does not provide for derogations for industrial zones. However, you can open a non-alcoholic drinking establishment (licence II or III) or a restaurant (licence III), but not a licence IV.

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 →