When land subject to the urban pre-emption right (droit de préemption urbain, a local authority’s right of first purchase) is compulsorily purchased (expropriation), two texts seem to conflict. The Planning Code (code de l’urbanisme) sets the reference date (date de référence, the date at which the use and planning rules of the property are frozen for valuation) on the day the most recent act of the local plan (PLU, plan local d’urbanisme) for the zone became enforceable; the Expropriation Code (code de l’expropriation) assesses classification as building land (terrain à bâtir) one year before the opening of the public inquiry. Are two dates needed, one for actual use, the other for building land? No, held the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) in a reported decision of 1 March 2023: the derogating date governs both. For the valuer, the use, zoning and servicing of the land are read at a single date.
The facts
The mixed-economy company (société d’économie mixte) Loire-Atlantique développement, the expropriating authority, expropriated a plot belonging to a private individual, located within a perimeter subject to the urban pre-emption right. The appeal states that the plot had been subject to it since 5 October 2004.
On 14 May 2021, the Rennes Court of Appeal set the compensation due to the owner. It found that the property was subject to a pre-emption right and that the latest amendment of the local plan concerning its zone, made on 12 April 2011, had become effective on 18 April 2011, after the publicity formalities. The owner did not dispute that amendment. The court therefore set the reference date at 18 April 2011 for the valuation of the plot, then, in the words of the appeal, ordered the expropriating authority to pay alternative indemnities. The Cour de cassation’s decision states neither their amount, nor the date of the inquiry, nor the plot’s classification.
The owner appealed. In his view, the reference date for assessing whether an expropriated property is building land is set one year before the opening of the public inquiry, and the Court of Appeal breached article L. 322-3 of the Expropriation Code by refusing to apply it. A second limb of the ground of appeal was declared inadmissible.
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 1 March 2023, appeal no. 22-11.467, reported).
It first stated the rule specific to pre-emptable property: “Under articles L. 213-4, a), and L. 213-6 of the Planning Code, where the expropriated property is subject to the pre-emption right, the reference date for determining the actual use of the property is the date on which the most recent of the acts making public, approving, revising or amending the land-use plan or the local plan and delimiting the zone in which the property is located became enforceable against third parties” (translated from the French).
It then extended its scope: “This reference date, which derogates from that provided for in article L. 322-2 of the Expropriation Code, also applies to the classification as building land, governed by article L. 322-3 of the same code.”
The Court of Appeal, which had retained the amendment effective on 18 April 2011, “rightly deduced from this that the reference date had to be set at 18 April 2011”.
The word “also” (également) carries the solution. The Court rules neither on the classification of the plot nor on the amount of compensation.
What this changes for valuation
One date for use and for classification. As a general rule, the actual use of the property is assessed one year before the opening of the public inquiry (article L. 322-2 of the Expropriation Code), and article L. 322-3 assesses the conditions for building land at that same date. For property subject to the urban pre-emption right, article L. 213-6 of the Planning Code, which refers to paragraph a) of article L. 213-4 (a paragraph covering property outside a deferred development zone, zone d’aménagement différé), replaces that date with the date of the latest act of the plan for the zone. Without this solution, the report could have described the use of the land at one date and its building rights at another, possibly several years apart.
What is assessed at that date. The buildable sector of the plan, the access road and the electricity, drinking water and, where applicable, sewerage networks, in the immediate vicinity and of adequate size (article L. 322-3), are checked at the date of the latest act of the plan to have become enforceable. The report attaches the regulations and the zoning map resulting from that act and documents the servicing at the same date. Disputes over proof of the capacity of the utilities or over an unapproved draft revision of the risk prevention plan are also placed at that date.
Finding the right act, and the date it became enforceable. In the Court’s words, what counts is the date on which the act “became enforceable against third parties”, not the date of its adoption: the amendment of 12 April 2011 took effect only on 18 April, after the publicity formalities, and the Court, without that choice being argued before it, approved the second date. The valuer draws up the chronology of the plan’s acts concerning the zone, with their publication dates, and retains the most recent. Not all of them count: neither the declaration of public utility that brings the plan into conformity, nor an amendment that merely redraws the boundary of the zone without changing its characteristics.
Why the date weighs on the price. Here, the reference date goes back to April 2011, for a Court of Appeal decision of May 2021. Between two plans, land can change category: as building land, it is valued by comparison with buildable land; otherwise, according to its actual use. When the date is disputed, the judge decides the point of law; the report presents the value at each of the dates in contention, with its own zoning and references.
How it fits with the decision of 30 March 2023. A few weeks later, the same chamber held that this date also prevails over the date of publication of the act creating a concerted development zone (ZAC, zone d’aménagement concerté) (Reference date in a ZAC: the urban pre-emption rule prevails). The two decisions complement each other: one for land within a ZAC, the other for classification as building land.
What the valuer takes from it
- For property subject to the urban pre-emption right, the reference date taken from the plan applies both to actual use and to classification as building land.
- The date one year before the opening of the public inquiry cannot be relied on for classification as building land alone.
- The date retained is the one on which the most recent act of the plan for the zone became enforceable against third parties, after publicity, not the date of its adoption.
- The report establishes the regime of the property and the chronology of the plan’s acts, then describes the zoning, access and utilities at that single date.
- Where the date is disputed, the report quantifies the value at each of the dates in contention.
Further reading
The Compulsory purchase and pre-emption page describes the assignment, its timescale and its fee. The guide Pre-emption by a public body in France: setting a defensible price and the glossary entries date de référence, droit de préemption and juge de l’expropriation complement this article. The decision of 30 March 2023 is discussed in Reference date in a ZAC: the urban pre-emption rule prevails. On the same theme: Pre-emption zone: plan-amending public utility act sets no date and Compulsory purchase in a ZAC: who must prove the utilities?. The decision is available on Légifrance.
What next
Expropriated land in a pre-emption zone, and a dispute over its classification as building land?
I determine the reference date that applies to property subject to the pre-emption right, reconstruct the zoning, access and utilities at that date, and value the land according to the resulting classification, for the expropriation judge or the negotiation.
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