A plot is compulsorily purchased (expropriation) while the flood risk prevention plan classifies it in the red zone, where building is not allowed. The plan is under revision, however, and the State services announced, before the reference date (date de référence), that the plot would move to the green zone. Should it be compensated as building land? Not on the strength of that draft, answers the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) in a reported decision of 8 June 2023: the draft revision had not modified the approved plan, which alone was annexed to the local planning plan. For the valuer, classification is read in the documents in force, not in those that are announced.
The facts
The local public company (société publique locale) La Fabrique de Bordeaux Métropole obtained the compulsory purchase, for its benefit, of a plot owned by a private individual. The point decided by the Cour de cassation concerned a strip of land detached from that plot, which the appeal describes as the part of the land detached from the building.
The strip lay in the red zone of the approved flood risk prevention plan (plan de prévention des risques d’inondation, PPRI). The plan was under revision: by a porter à connaissance of 20 July 2016, a document by which the State passes on to the local authority the information relevant to planning, the State services classified the plot in the green zone of the PPRI, a zone of low flood hazard.
The Bordeaux Court of Appeal, in a judgment of 27 January 2022, set the compensation due to the expropriated owner and classified the strip as building land, on the ground that “it is appropriate to take into account this information prior to the reference date” (translated from the French, as are all quotations below).
The expropriating authority appealed to the Cour de cassation: at the reference date, the plot was in the unbuildable red zone, and the notice, “which did not warn of an increase in the risk”, could not call into question the plan still in force. The decision states neither the area of the strip, nor the reference date, nor the amount of compensation.
The decision
The Cour de cassation quashed the judgment in all its provisions (Cass. 3e civ., 8 June 2023, appeal no. 22-13.855, reported), under article L. 322-3 of the Expropriation Code (code de l’expropriation pour cause d’utilité publique). The other complaints were dismissed without a specially reasoned decision.
It recalled that building land status is reserved for land which, as a general rule one year before the opening of the public inquiry, is “located in a sector designated as buildable by a land use plan, a local planning plan, a planning document taking its place or by a municipal map”.
It then censured the Court of Appeal, which had so ruled “whereas the draft revision of the natural risk prevention plan brought to the attention of the metropolitan authority had not had the effect of modifying the content of the approved natural risk prevention plan, classifying the expropriated plot in an unbuildable zone, which alone was annexed to the local planning plan”.
The published summary of the decision gives its general scope: to classify a plot as building land, the expropriation judge (juge de l’expropriation) may not rely on a draft revision of the risk prevention plan (plan de prévention des risques, PPR) brought to the attention of the municipality or the competent grouping of municipalities by the State services, but neither approved nor annexed to the local planning plan (PLU). The case was sent back to the Toulouse Court of Appeal, which must set the compensation; the Court does not say how the strip should be valued.
What this changes for valuation
The approved plan governs classification. The approved risk prevention plan, annexed to the local planning plan, is part of what the valuer reads to check whether land lies in a buildable sector: it is its classification of the plot as unbuildable that the Court sets against the Court of Appeal, despite the draft revision under way, which was neither approved nor annexed to the local planning plan. The report cites the plan in force at the reference date, with its date of approval, and mentions known drafts, a prescribed revision or a State notice, in order to set them expressly aside from the classification.
The decision does not distinguish according to the direction of the revision. The appeal stressed that the notice did not announce an increased risk. The Court does not take up that argument: its reasoning rests solely on the fact that the draft had not modified the approved plan. The opposite case, an aggravated risk notified on land that is buildable under the plan in force, is not decided; the valuer who meets it flags it to the judge, with the documents, without presuming the outcome.
Classification drives the comparables. Land that is not building land is valued according to its actual use at the reference date (article L. 322-2 of the Expropriation Code), for example a garden, amenity land or appurtenance of a house (the decision does not state how the strip was used), with comparables of non-buildable land in a similar situation, notably as regards flood risk. The gap per square metre with building land in the same sector is generally significant: classification is settled before any figures and, when it is disputed, the report may present the value under each of the two classifications, the legal choice being for the judge.
Classification and restrictions: two separate questions. The decision concerns building land status (article L. 322-3). Which easements and administrative restrictions reduce the value of land that is building land is a matter for article L. 322-4; the same chamber ruled on it on 28 September 2023 for a temporary holding perimeter, a decision discussed in Expropriated building land: only permanent restrictions count.
Servicing and the date. Building land also requires servicing by an access road and adequate utilities, whose proof in a comprehensive development zone has its own rules. And the date at which the plan is read is not always one year before the inquiry: under the urban pre-emption right, outside a deferred development zone, it is the date of the latest act of the local planning plan that became enforceable for the zone (Building land and pre-emption: the same reference date applies), which an act merely redrawing the zone boundary does not move.
What the valuer takes from it
- A plot classified as unbuildable by the approved risk prevention plan, annexed to the local planning plan, is not building land.
- A draft revision notified before the reference date, but neither approved nor annexed to the PLU, does not modify that classification.
- The report cites the documents in force at the reference date, with their dates, and expressly sets drafts aside.
- Classification is settled before any figures: it drives the choice of comparables, building land or land valued according to its actual use.
- Classification (article L. 322-3) and the effect of restrictions on the value of building land (article L. 322-4) are two separate questions.
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, indemnité principale and juge de l’expropriation complement this article. On valuing building land burdened by restrictions: Expropriated building land: only permanent restrictions count. On the same theme: Compulsory purchase in a ZAC: who must prove the utilities? and Building land and pre-emption: the same reference date applies. The decision is available on Légifrance.
What next
Expropriated land classed as unbuildable by a risk prevention plan, while a revision is announced?
I establish, document by document, the rules applying to the land at the reference date, local planning plan and approved risk prevention plan, set aside drafts that were never approved and value the land according to the resulting classification, for the expropriation judge or the negotiation.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
