Urban planning case law: the mayor's police powers extended

Published on February 16, 2023

Business criminal law

By a decision of December 22, 2022, the Council of State set a precedent in urban planning law by expanding the means of action available to the mayor to combat illegal constructions. He can now order demolition. Analysis by Me Sophie Marques.

Under what circumstances?

After noting that works to build a fence had not been carried out in accordance with the decision of non-opposition to a prior declaration obtained by one of its constituents, the mayor of Villeneuve-lès-Mageulone drew up a report of infringement against him and ordered him to regularize the irregularly undertaken works under penalty of 100 euros per day of delay.

Seized by the offender, the interim relief judge of the Montpellier Administrative Court, by an order of April 1, 2022, suspended the mayor's decision on the grounds that the provisions of Article L. 481-1 of the Urban Planning Code did not allow him to request the demolition of irregularly constructed structures.

The municipality then appealed to the Court of Cassation.

The solution adopted:

After recalling Articles L. 480-1 and L. 481-1 of the Urban Planning Code, the High Court considered, based on the parliamentary travaux préparatoires of Law No. 2019-1461 of December 27, 2019 from which Article L. 481-1 originates, that the legislator intended "to strengthen compliance with land use rules and planning permissions."

It concluded that in the case of irregularly undertaken works, the authority competent to issue planning permissions may, after drawing up a report of the infringement and independently of any criminal proceedings that may be initiated, order the person concerned, after hearing their observations, either to apply for the necessary authorization or to bring the construction into compliance with the provisions that have been violated, including, if compliance requires it, carrying out the necessary demolitions.

As a reminder, Article 48 of Law No. 2019-1461 of December 27, 2019 on commitment to local life and proximity of public action created a new administrative police procedure, including formal notice, penalty payment and sequestration, to enable the competent administrative authorities in urban planning matters to effectively combat breaches of urban planning law in construction matters.