Tacit Planning Permission: The Trap of the Notification that Starts the Time Limit

You submitted a planning application to raise your garage in Mehun-sur-Yèvre. Weeks pass, the administration does not respond. After two months, you think you benefit from a tacit planning permission (authorisation obtained without an express response from the administration). You start the work. But six months later, a municipal officer informs you of an offence: you never had permission. How is this possible?

This question was put to the Cour de cassation by a property owner in 1985. The issue: when does the time limit for tacit permission start to run? The judges' answer was landmark, and it still applies to applications submitted before the decree of 30 December 1983.

The decision of 26 November 1985 (No. 84-92.902) rules: before this decree, the time limit only runs from the date of the notification sent to the applicant by the administrative authority. No notification, no time limit. And therefore no tacit permission. A simple principle, but one with serious consequences for those unaware of the formalities.

The Facts: A Story That Happens Every Day

Mr X, owner of a house in Mehun-sur-Yèvre (Cher), obtained a planning permission in 1981 to convert an existing building. Without additional authorisation, he raised the roof frame. The town hall sent him a stop-work order. Mr X complied and submitted a new planning application on 3 June 1982 to regularise the raising.

The administration did not respond. Mr X then considered that a tacit permission was acquired from 3 August 1982, i.e. two months after submission (the then applicable time limit). He resumed work.

Problem: he was prosecuted for construction not conforming to the original permission. Before the criminal court, Mr X invoked the tacit permission. The Court of Appeal agreed: it held that the tacit permission was acquired from 3 August 1982. But the public prosecutor appealed to the Cour de cassation.

The Cour de cassation quashed the appeal judgment. It recalled that, for applications submitted before the decree of 30 December 1983, the two-month time limit only runs from the date of notification of the application by the administrative authority to the applicant. However, there was no proof that such notification had occurred. Without it, no time limit, no tacit permission. Mr X therefore found himself without authorisation, and the works remained illegal.

The Reasoning of the Court — Analysed

The Cour de cassation relies on Article R. 421-12 of the Planning Code in its wording prior to the decree of 30 December 1983. This text provided that the time limit for examining the planning application runs from the receipt of the application by the competent authority. But the Court specifies that, for the time limit to expire and create a tacit permission, the applicant must have been informed of the submission of his own application. This is what notification achieves: a registered letter from the town hall acknowledging receipt of the application.

In everyday language: you cannot rely on the administration's silence if you do not have proof that it actually received and recorded your file. Notification serves as the official starting point. Without it, the time limit does not start, and therefore it cannot expire.

The Court rejects Mr X's argument that mere submission suffices. It holds that the Court of Appeal did not verify whether notification had been made. Yet this is a sine qua non condition (essential).

This decision does not create a reversal: it confirms established case law. But it forcefully reminds that the protective formalism of the administration must not be circumvented. The judges intended to prevent applicants from artificially creating a tacit permission by submitting an incomplete file or neglecting to follow procedures.

What This Means for You — Practically

If you are a property owner in Saint-Amand-Montrond and submitted a planning application before 31 December 1983, this decision directly concerns you. You must prove that you received an acknowledgement of receipt (notification) from the town hall. Without it, the two-month time limit never started, and you have no tacit permission.

For applications after the 1983 decree, the system changed: the time limit now runs from the submission of the complete application. But be careful: if your file is incomplete, the administration may request additional documents and postpone the starting point.

Let's take a numerical example: you submit an application on 1 March for a 30 m² extension. Without notification, you believe the tacit permission is acquired on 1 May. You undertake works costing €50,000. If a neighbour challenges or the town hall issues a fine, you risk a penalty (up to €120,000 for construction without permission) and an obligation to demolish. Total cost: lost works + fine + legal fees, potentially over €100,000. A simple registered letter with acknowledgement of receipt from the town hall would have sufficed to secure your situation.

If you are a tenant, be vigilant: your landlord must have a valid permission before carrying out works affecting common parts or the structure. Without notification, no tacit permission, and you could suffer nuisance without recourse.

If you are a buyer, demand to see the acknowledgement of receipt of the permission (or the express permission) before signing the sale deed. A non-notified tacit permission is a non-existent permission, and you could inherit an illegal construction.

Four Tips to Avoid This Type of Dispute

• Keep the acknowledgement of receipt of your application carefully: it is the key document to start the time limit. Without it, no tacit permission. Make a copy and file it with your property documents.
• Never start works before obtaining an express permission or a receipt of notification: even if the legal time limit has passed, wait for written confirmation. Mere silence can be challenged.
• Check the content of your file before submitting it: an incomplete file may be rejected or treated as a new application. Ensure all plans, photos and forms are included. In Saint-Amand-Montrond, the town hall often requires a location plan and a descriptive notice.
• If in doubt, consult a solicitor specialising in planning law: notification rules have evolved with the decrees of 1983 and 2007. A professional can check whether your situation is covered by a tacit permission.

Further Reading: Related Case Law and Developments

The 1985 decision is part of a line of case law protecting the administration against tacit permissions obtained without notification. One can cite a Conseil d'État decision of 22 February 1980 (No. 14782) which already required prior notification. The Cour de cassation confirms this approach in criminal matters.

Since the decree of 30 December 1983, the time limit runs from receipt of the complete application. But case law continues to clarify the contours of tacit permission. For example, the Cour de cassation ruled in 2005 (No. 03-87.456) that the time limit does not run if the application is sent to an incompetent authority. The trend is therefore towards stricter formal requirements.

For the future, expect judges to scrutinise the regularity of notification, especially in case of challenge. Tacit permission remains an exception, and its acquisition is subject to strict conditions.

In Practice: What to Do

FAQ:

• Q: Can I benefit from a tacit permission if I submitted my application in 2024? A: Yes, if your file is complete and the administration has not responded within the legal time limit (1 month for prior declarations, 2 or 3 months for planning permissions depending on the nature of the project). But you must have an acknowledgement of receipt from the town hall.
• Q: What if I have not received an acknowledgement of receipt? A: Request it by registered letter with AR. If the town hall does not respond, apply to the administrative court to have the tacit permission declared.
• Q: What are the risks if I build without permission? A: Fine up to €120,000, demolition, even imprisonment (rare). A non-notified tacit permission does not protect you.
• Q: Does this decision still apply today? A: For applications after 1983, the rules changed: the time limit runs from submission of the complete application. But the spirit of the decision (necessity of notification) remains relevant in case of dispute over the date of receipt.
• Q: Can I challenge a refusal of tacit permission? A: Yes, before the administrative court, within two months of the implied rejection decision (silence of the administration after the legal time limit).

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