Phone Mast and Abnormal Neighbourhood Disturbance: The Civil Court Is Not Competent

Picture the scene: you own a lovely house in Agde, with a clear view of the Mediterranean. One morning, you discover that a mobile phone mast has been installed a few metres from your fence. Worried about your health and the value of your property, you want it removed. You contact a solicitor, who says: "We will sue the operator before the Judicial Court of Montpellier for abnormal neighbourhood disturbance." But the Court of Cassation, in a judgment of 19 December 2012, closed that door. Why? Because if the mast was authorised by the administration (by way of a planning permission or prior declaration), it is for the administrative court to rule on the legality of that authorisation, not for the civil court to order its removal. In other words, the civil court is not competent to order the demolition of an installation that has been duly authorised. But what can you do if you suffer damage? This judgment clarifies: you can claim damages before the civil court, provided you can prove an abnormal neighbourhood disturbance. However, in practice, proving that electromagnetic waves constitute an abnormal disturbance is very difficult.

The Facts: A Story That Happens Every Day

Mr X, owner of a house in Agde, one day sees a phone mast emerging near his garden. Worried about the possible effects on his health and the value of his property, he decides to take action. He sues the mobile phone operator before the Tribunal de Grande Instance of Montpellier (now the Judicial Court) to have the mast removed and to obtain damages for abnormal neighbourhood disturbance (Article 1240 of the Civil Code, which requires compensation for damage caused by fault). The operator defends itself by arguing that the mast was installed in accordance with an administrative authorisation (planning permission). Therefore, only the administrative court can review the legality of that authorisation and, if necessary, order demolition. The Judicial Court declares itself incompetent to order removal, but recognises its competence to rule on damages. Mr X appeals. The Court of Appeal of Montpellier confirms the civil court's lack of jurisdiction regarding removal, but awards damages. The case reaches the Court of Cassation. In its judgment of 19 December 2012, the Court of Cassation quashes the appeal judgment on damages, holding that the abnormal disturbance was not established. In summary, the judges said: "To obtain removal, apply to the administrative court; for damages, first prove the abnormal disturbance."

The Reasoning of the Court — Analysed

The Court of Cassation relies on the principle of separation of powers: the civil court cannot order the demolition of a public work or an installation duly authorised by the administration. This is known as the "theory of public works" or, more simply, respect for administrative decisions. Article 1240 of the Civil Code (liability for fault) and the theory of abnormal neighbourhood disturbances (which is a strict liability) do allow claims for damages, but only if it is proved that the disturbance exceeds the normal inconveniences of neighbourhood. However, regarding a phone mast, the Court considers that the mere fact of being exposed to electromagnetic waves, within regulatory limits, does not in itself constitute an abnormal disturbance. It is necessary to demonstrate specific damage (for example, a decrease in the market value of the property proved by an expert report, or serious medical problems). In short, the decision does not close the door to all actions, but it considerably limits their scope. The Court here confirms settled case law: the civil court is not competent to order the removal of an authorised installation, even if it can award damages if the abnormal disturbance is established.

What This Changes for You — Practically

If you own a property in Béziers or elsewhere, and a phone mast is installed nearby, you should know that:

• You cannot ask the civil court to have the mast removed. To do that, you must challenge the administrative authorisation (planning permission, prior declaration) before the Administrative Court of Montpellier, within two months from the display of the permission. After that time, the authorisation becomes final.
• You can claim damages before the civil court (Judicial Court of Montpellier) if you prove an abnormal neighbourhood disturbance. For example, if you show that your house has lost 20% of its value (i.e. €40,000 on a property worth €200,000), you could obtain compensation. But beware: the courts are demanding on evidence. A mere fear is not enough.
• If you are a tenant, you can take action against your landlord for breach of quiet enjoyment, but this is difficult to prove.
• Co-owners: if the mast is installed on the roof of your building, the management company must have authorised the lease of the roof to the operator. You can challenge this decision at a general meeting.

undefined, I have come across cases where residents of Agde obtained €5,000 in damages after proving a decrease in the rental value of their property. But they did not obtain the removal of the mast. What you should remember: act quickly to challenge the administrative authorisation, because after two months it is too late.

Four Tips to Avoid This Type of Dispute

• Check the planning permission as soon as work begins. Go to the planning department of your town hall (in Agde or Béziers) to consult the file. If the permission is illegal (for example, failure to comply with setback distances), you can challenge it within two months.
• Have the wave levels measured by an accredited firm. If the regulatory thresholds are exceeded, you will be able to rely on an abnormal neighbourhood disturbance.
• Gather evidence of your damage: a property valuation before/after installation, neighbour testimonies, medical certificates if you have symptoms. The more evidence you have, the higher your chances of obtaining damages.
• Consult a solicitor specialising in property and administrative law. A solicitor can guide you towards the correct court (administrative for removal, civil for damages) and avoid a dismissal for lack of jurisdiction.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of authority from the Court of Cassation. Already, in a judgment of 10 March 2010 (No. 09-10.966), the Court held that the civil court could not order the demolition of a duly authorised phone mast. More recently, the Administrative Court of Appeal of Marseille confirmed that the administrative authorisation was lawful if it complied with health standards (judgment of 5 February 2019). The trend is therefore clear: the courts are reluctant to challenge authorised installations, except in cases of serious defect in the permission. For the future, the issue of electromagnetic waves remains sensitive, but the case law seems stable: the civil route is limited to damages, and the administrative route to challenging the permission. If you want to make a difference, it is better to act politically or through residents' associations.

Checklist Before Taking Action

FAQ: 5 Practical Questions

1. Can I have a phone mast installed near my home removed? Yes, but only by challenging the planning permission before the administrative court, within two months of the display of the permission. After that time, the mast is considered legal and can no longer be removed.
2. Can I obtain damages? Yes, before the civil court, if you prove an abnormal neighbourhood disturbance (decrease in property value, serious health problems, etc.). Compensation varies from €3,000 to €50,000 depending on the case.
3. What are the time limits for taking action? To challenge the permission: 2 months. To claim damages: 5 years from installation (general limitation period).
4. How much does legal action cost? Expect between €2,000 and €5,000 in solicitor's fees for a damages claim, plus expert report costs (€1,000 to €3,000). If you win, the operator may be ordered to reimburse part of these costs.
5. What if the mast is on the building opposite? You can form a residents' association to pool costs and strengthen your case.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) could save you months of proceedings — and often much more. Book an appointment →