To value a compulsorily purchased property (expropriation), its actual use and the applicable planning rules are frozen at the reference date (date de référence). In a concerted development zone (ZAC, zone d’aménagement concerté), that date is in principle the publication of the act creating the zone; for property subject to the urban pre-emption right (droit de préemption urbain), it is the most recent of the acts approving, revising or amending the local planning plan (PLU). Where the property falls under both regimes, the reported decision of the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) of 30 March 2023 gives precedence to the pre-emption rule. The date can thus shift by several years, and the zoning with it.
The facts
On 11 December 2013, the municipal council of a commune in the Ain department approved the creation of the ZAC of an eco-district, whose development was entrusted to a development company. By an order of 28 January 2019, the prefect of the Ain declared the acquisition of the necessary land to be in the public interest (déclaration d’utilité publique), the order also bringing the commune’s PLU into compatibility; an order of 26 July 2019 declared that land transferable, including a plot belonging to two owners, and the expropriation order was made on 16 October 2019. With no agreement on compensation, the developer applied to the expropriation judge (juge de l’expropriation) of the Ain.
On 1 February 2022, the Lyon Court of Appeal found that the property, located within the ZAC, had been subject to the urban pre-emption right since 12 April 2017, and applied the rule of the Planning Code. According to the appeal, it thereby set the reference date at 26 February 2019, the date of publication of the latest “revision” of the local plan.
The developer, as expropriating authority, appealed: in a ZAC, only the actual use of the property at the date of publication of the act creating the zone should count, “it being irrelevant that the property is also subject to an urban pre-emption right” (translated from the French, as are the quotations below).
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 30 March 2023, appeal no. 22-14.163, reported).
It first restated the rule specific to ZACs, drawn from article L. 322-2 of the Expropriation Code: “the reference date is that of the publication of the act creating the zone, if it is at least one year earlier than the date of opening of the public inquiry prior to the declaration of public utility”. It then set out the exception: “By way of 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 the aforementioned article L. 322-2 is, for property not included in a deferred development zone, the date on which the most recent 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.”
Finally, it approved the Court of Appeal, which, having found that the property was subject to the urban pre-emption right, “rightly deduced from this that the reference date was the one defined by the articles of the Planning Code”. The second argument of the appeal was set aside without specific reasoning.
The decision settles only the choice of regime: its reasoning addresses neither the specific act retained by the Court of Appeal nor the one-year condition, whose dates do not appear in the decision, and the rule is confined to property outside a deferred development zone (zone d’aménagement différé, ZAD, a pre-emption area set aside for future development).
What this changes for valuation
Identify the regime before looking for the date. Under the urban pre-emption right, outside a ZAD, the reference date is that of the most recent PLU act delimiting the zone, even in a ZAC. Otherwise, in a ZAC, it is the publication of the act creating the zone, if it precedes the opening of the inquiry by at least one year; failing that, the general rule of article L. 322-2: in principle one year before the inquiry opens. The order matters: in the Ain case, some five years separate the resolution creating the zone from the date retained.
Find the right planning act. Each change to the PLU concerning the zone can move the date, but not every act counts. The Court held on 25 January 2018 that the publication of a declaration of public utility bringing the PLU into compatibility is not among the acts exhaustively listed in article L. 213-4, and on 13 June 2019 that an amendment which merely redraws the boundary of the zone, without changing its characteristics, does not move the date. Here, the act published on 26 February 2019 came less than a month after the public utility order bringing the plan into compatibility; the decision does not specify its nature and gives no reasoning on the point. The valuer therefore draws up the chronology of the planning acts for the zone, with the date on which each became enforceable against third parties, and checks the nature and content of the one retained.
Freeze the position, then apply the prices. The reference date freezes the actual use and the planning rules; the property is nonetheless valued at the date of the first-instance decision (article L. 322-2 of the Expropriation Code). The report appends the PLU in force at the date retained, describes the use of the property at that date and selects comparables subject to the same planning rules. The same date governs the classification as building land, according to a decision of 1 March 2023 discussed separately. In a zone the PLU earmarks for comprehensive development, the size of the utilities is also assessed against the zone as a whole, and where the classification is challenged on that ground alone, it is for the expropriating authority to prove their inadequacy.
When the date is disputed. The judge decides in law; the report can value the property at each of the dates argued, with the zoning and references specific to each.
What the valuer takes from it
- For property in a ZAC subject to the urban pre-emption right, outside a ZAD, the reference date is the date on which the most recent act making public, approving, revising or amending the PLU and delimiting its zone became enforceable against third parties, not the publication of the act creating the ZAC.
- The valuer identifies the regime of the property before looking for the date: pre-emption, ZAD, ZAC.
- A complete chronology of the planning acts helps set aside those the case law excludes: a declaration of public utility bringing the plan into compatibility, a mere change of boundary.
- The report freezes the use and zoning at the reference date, then applies the prices at the date of the first-instance judgment; where the date is disputed, it values the property at each competing date.
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. On the classification as building land: Building land and pre-emption: the same reference date applies. On the same theme: Pre-emption zone: plan-amending public utility act sets no date and Reference date: redrawing the zone boundary is not enough. The decision is available on Légifrance.
What next
Property expropriated in a ZAC and subject to the urban pre-emption right?
I determine the applicable reference date by tracing the planning act that sets it for the zone, reconstruct the use and zoning of the property at that date and value it accordingly, for the statement of case 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).
