Motivation for planning penalties
In this case, the owner of a parcel of land is being prosecuted for :
-carrying out work not authorised by a building permit,
-construction or development in an area prohibited by a natural risk prevention plan,
-infringement of local urban development plan
-and continued work despite the Interruption Order.
The lower court found him guilty of all the offences and ordered him to pay a fine. It also ordered that the premises be restored, subject to a fine, and ruled on the civil interests.
Thus, by ordering the restoration of the premises, which does not constitute a penalty but a measure of a real nature intended to put an end to an unlawful situation, the appeal judges are merely using the power granted to them by article L. 480-5 of the French Town Planning Code.
However, in criminal cases, the reasons for any sentence must take account of :
-the circumstances of the offence,
-the personality of its author
-and its material, family and social situation.
All judgments and rulings must therefore include the reasons for the decision. Insufficient or contradictory reasons are equivalent to the absence of reasons.
Solution adopted by the Cour de cassation :
Therefore, a court of appeal is not justified in its decision if, in ordering the owner to pay a certain sum by way of fine, it confines itself to ruling in consideration of the provisions of article 132-20 of the Criminal Code and the resources of the defendant, the director of a public works company, without giving reasons for the choice of this penalty in the light of the circumstances of the offence.
Good to know (Reasons for planning penalties) :
DEFINITION OF THE OFFENCE :
A criminal offence is an act, omission or behaviour prohibited by law and punishable by criminal penalties.. In other words: fine, imprisonment, disqualification, community service, etc.
Under the French criminal justice system, there are three categories of offence. This is known as the tripartite classification of offences:
-. Contraventions. These are the least serious offences and are considered to be more incivilities than offences against society,
-. Offenceswhich can result in prison sentences. Misdemeanours are less serious than felonies but more serious than fines,
-. The crimesThese are the most serious offences, tried by the assize courts.
The vast majority of breaches of the planning code are therefore offences. They are dealt with by the criminal court.
THE CONSEQUENCES OF THE OFFENCE :
Offences can be punished by :
-. up to 10 years' imprisonment,
-. a fine an amount equal to or greater than €3,750 for an individual, or equal to or greater than €18,750 for a legal entity (e.g. a company),
-. damages and interestif the victim of the offence files a complaint civil party.
The criminal court may also order restitution measures, i.e. the restoration of the land, the demolition of illegally built structures, compliance with the permit issued, etc. .... These are generally accompanied by a time limit and a penalty payment, which is a means used by the court to ensure that an obligation placed on the defendant is fulfilled.
If the obligation is not fulfilled within the period specified by the court, the debtor will be liable to a daily fine.
These restitution measures are real measures designed to put an end to an irregular situation. They are not criminal sanctions.
The issues involved in setting up a " civil party "for local authorities
Bringing a civil action is a concept that is sometimes misunderstood by local authorities. For local authorities, it means being present, either directly or through their lawyer, at the public hearing in order to appear in the judgement as a victim and to assert their rights to compensation, which range from damages to claims for the restoration of the land.
As a result, the municipality does not have to demonstrate the existence of a loss in order to request the demolition of unlawful constructions/installations.
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