The reference date is the day on which the expropriated property is photographed, its use, its zoning, its servicing, in order to value it. The general rule sets it one year before the opening of the public inquiry; in a concerted development zone (ZAC), at the publication of the act creating the zone; and where the property is subject to the urban pre-emption right, at the date of the latest act making public, approving, revising or amending the local plan for the zone. Two reported rulings of March 2023 settle the conflicts between those rules. On 30 March, the Cour de cassation (the French supreme court for civil matters) holds that in a ZAC whose land is also subject to the urban pre-emption right, the pre-emption rule prevails, by derogation from the ZAC rule. On 1 March, it holds that this derogating date also applies to the classification as building land, not only to actual use. For the valuer, the reference date can thus shift by several years, and with it the zoning and the price.
The facts
In the case of 30 March, a municipality in the Ain department creates in December 2013 the ZAC of an eco-district, whose development is entrusted to a development company. The prefect declares the public utility in January 2019, with the local plan brought into compatibility, then the transferability in July 2019; the expropriation order is made in October 2019. The expropriated property has been subject to the urban pre-emption right since 12 April 2017. The Lyon court of appeal, on 1 February 2022, sets the reference date at 26 February 2019, the date of publication of the latest revision of the local plan, applying the pre-emption rules. The developer appealed: in a ZAC, the date of publication of the act creating the zone is what counts.
In the case of 1 March, a mixed-economy company of Loire-Atlantique expropriates a plot within a perimeter subject to the urban pre-emption right since 2004. The Rennes court of appeal, on 14 May 2021, sets the reference date at 18 April 2011, the date on which the latest amendment of the local plan concerning the zone became enforceable, including to decide whether the plot is building land. The owner appealed: for the classification as building land, article L. 322-3 sets the date one year before the opening of the inquiry.
The decision
The third civil chamber dismissed both appeals. On 30 March 2023 (Cass. 3e civ., no. 22-14.163, reported), it recalls that in a ZAC “the reference date is that of the publication of the act creating the zone, if it is at least one year before the date of opening of the public inquiry”, then states the derogation: “where the expropriated property, located within the perimeter of such a zone, is subject to the urban pre-emption right, it follows from the combination of articles L. 213-4, a), and L. 213-6 of the Planning Code that the reference date provided for in article L. 322-2 is, for property not included in a deferred development zone, the date on which the latest of the acts making public, approving, revising or amending the local plan and delimiting the zone in which the property is located became enforceable against third parties”.
On 1 March 2023 (Cass. 3e civ., no. 22-11.467, reported), it holds that this reference date, “derogating 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 date of 18 April 2011 was therefore the right one.
What this changes for valuation
Three rules, one hierarchy. Before valuing, the valuer identifies the regime of the property: subject to the urban pre-emption right, in a ZAC, or neither. If the urban pre-emption right applies, and the property is not in a deferred development zone, the reference date is that of the latest act making the local plan enforceable for the zone, even in a ZAC; that is the rule of article L. 213-6 of the Planning Code. Otherwise, in a ZAC, it is the publication of the act creating the zone, provided it precedes the opening of the inquiry by at least one year; failing that, the general rule of one year before the inquiry. The order matters, because those dates can be several years apart. The glossary defines the date de référence and its rules.
A date that moves with the local plan. The pre-emption rule refers to “the latest” of the acts amending the plan for the zone: each revision or amendment of the local plan concerning the zone moves the reference date. In the Ain case, the bringing into compatibility of the local plan imposed by the declaration of public utility itself set the date in February 2019, a few months before the expropriation, and thus with zoning already adapted to the project. The valuer checks the history of the planning acts for the zone, and retains the latest that became enforceable, with its date of publication.
Actual use and building land, same date. The ruling of 1 March rejects the idea of two different dates, one for the actual use of the property, the other for its classification as building land. Where the pre-emption rule applies, it is at its date that both the buildable zoning and the servicing by utilities are assessed. The report therefore presents, at that single date, the classification, the legal building possibilities, the utilities and the access, as described in the article on the proof of utilities in a ZAC.
Why the date changes the price. Land classified as agricultural in 2011 and buildable in 2019 is not worth the same depending on the date retained; conversely, land buildable under an old plan and frozen since is worth more at the earlier date. The parties often argue for the date that suits them, and the judge decides in law. The valuer, for his part, can value at both dates when the question is disputed, stating for each the zoning and the references, so that the judge has the indemnity corresponding to the rule he will adopt; that is the logic of the alternative indemnities the Expropriation Code allows.
Pre-emption itself follows the same date. When the public body pre-empts and applies to the expropriation judge to set the price, the reference date is that of article L. 213-6, that is, the same as the one these rulings apply to the expropriation of property subject to pre-emption. The guide for a pre-empting public body and the article on the pre-emption price set according to the condition of the property complement this point.
What the valuer takes from it
- For property subject to the urban pre-emption right, outside a deferred development zone, the reference date is that of the latest act making the local plan enforceable for the zone, even if the property is in a ZAC.
- That derogating date applies to actual use as well as to the classification as building land.
- The valuer first identifies the regime of the property, then the history of the planning acts for the zone, before photographing the property at the date retained.
- Where the date is disputed, the report values at the competing dates, with the zoning of each.
- Pre-emption and the expropriation of pre-emptable property share the same reference date.
Further reading
The Compulsory purchase and pre-emption page describes the assignment, its timescale and its fee. The guide Public bodies: pre-emption, setting a defensible price and the glossary entries date de référence, droit de préemption and juge de l’expropriation complement this article. On the same theme: Compulsory purchase in a ZAC: who must prove the utilities? and Expropriated building land: only permanent restrictions count. The decisions are available on Légifrance: no. 22-14.163 and no. 22-11.467.
What next
Property expropriated in a development zone or a pre-emption area, and a reference date that changes the classification of the land?
I determine the applicable reference date, development zone, pre-emption right or general rule, reconstruct the zoning and the utilities at that date and value the property according to the resulting classification, for the memorandum or the negotiation.
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