A joint authority in charge of the Rhône delta dykes took part of four plots by compulsory purchase (expropriation) in a zone d’aménagement concerté (ZAC, a development zone planned and serviced as a whole). The Court of Appeal compensated them as building land (terrain à bâtir), left the pollution raised by the expropriating authority unanswered and refused any depreciation of the remainder. On 4 April 2019, in a reported decision, the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) quashed the ruling on all three points: the utilities had to be examined at the scale of the zone, the pollution called for an answer, and building land can give rise to compensation for depreciation of the remainder (dépréciation du surplus).
The facts
The Symadrem, the inter-regional joint authority for the development of the dykes of the Rhône delta and the sea, partly expropriated four plots belonging to a couple, classified in zone ZAe2, for business and service use, under the zone development plan of the Mas Courtois ZAC.
In a ruling of 20 November 2017, the Nîmes Court of Appeal found that at the reference date the plots were classified in that zone and served by a road and utilities following the development works. From a market study of sales of buildable plots in a zone set aside for reception and service activities, it adopted an average price of €35 per m² and set the principal compensation (indemnité principale) at €140,385, the reinvestment allowance (indemnité de remploi) at €15,039 and the allowance for replacing the fence at €4,750. It did not answer the Symadrem, which argued that the subsoil was polluted and that a 40% reduction in value (abattement) should be applied, and it rejected the owners’ claim, €50,000 for depreciation of the remainder, because of the plots’ classification as building land.
The expropriating authority lodged the main appeal, the owners a cross-appeal.
The decision
The Cour de cassation quashed the ruling in full and remitted the case to the Nîmes Court of Appeal, differently composed (Cass. 3e civ., 4 April 2019, appeal no. 18-10.989, reported). It quashed on three grounds, each based on a separate provision, and dismissed the expropriating authority’s first complaint without specific reasons.
The utilities (article L. 322-3 of the French Expropriation Code). By ruling “without examining, as it was asked to, whether, the plots being located in a zone designated by the planning document as due to be the subject of a comprehensive development operation, the capacity of the utilities serving them was adequate with regard to the whole zone, the Court of Appeal failed to give a legal basis to its decision” (translated from the French). The Court does not hold that the plots are not building land: it faults the Court of Appeal for not making the examination requested.
The pollution (article 455 of the Code of Civil Procedure). By adopting €35 per m² “without answering the appeal submissions of the Symadrem, which argued that the subsoil of the plots was polluted and that a 40% reduction should consequently be applied”, the Court of Appeal “did not satisfy the requirements of the text referred to above”. The Court rules neither on the reality of the pollution nor on the 40% rate.
The remainder (article L. 321-1 of the same code). By refusing compensation solely because the land was classified as building land, the Court of Appeal breached that article, “whereas, in the case of partial expropriation, an indemnity for depreciation of the remainder may be awarded whatever the nature of the expropriated property”.
What this changes for valuation
Utilities in a ZAC are measured at the scale of the zone. To classify land as building land, article L. 322-3 requires servicing in the immediate vicinity by a road and by utilities whose dimensions suit the building capacity, assessed with regard to the whole zone where it is intended for a comprehensive development operation. Utilities at the plot boundary, sufficient for a few buildings, may not suffice for the ZAC programme. The report therefore documents, at the reference date, their capacity set against the programme, from the ZAC documents and the utility operators’ plans.
The burden of proof, clarified in 2026. The 2019 decision requires the judge to examine utility capacity when asked, without saying who must prove it. A reported decision of 8 January 2026 (appeal no. 24-22.726) completed the rule: where building-land status is disputed only on the ground that the utilities are inadequate with regard to the whole zone, the expropriating authority, responsible for the development, must prove that inadequacy. The two decisions are complementary, the more recent setting the rule of proof: the authority that raises the objection produces the capacity studies and the ZAC documents (Compulsory purchase in a ZAC: who must prove the utilities?).
A pollution claim calls for a quantified examination. The Court requires an answer, not a reduction. The report therefore deals with any pollution raised, even to set it aside: it checks whether it is established, from soil surveys and the history of the site, then quantifies its effect from the cost of the measures needed for the use the zoning allows, in preference to a flat percentage (see prefer a quote to a flat-rate deduction). Where remediation costs are deducted from the compensation but the works are not carried out, owners seeking an expert appraisal before any proceedings need not first prove their claim well founded, as a 2025 ruling on deducted remediation held.
The remainder can lose value, even on building land. The principal compensation pays for the land taken; depreciation of the remainder repairs the loss of value of the part kept: less regular shape, reduced area, longer access, lower building potential. It is not automatic: article L. 321-1 limits compensation to the direct, material and certain loss caused by the expropriation. The report values the remainder before and after the taking, with the same references, and quantifies the gap. The extra building cost caused by a tunnel set in the expropriated subsoil, damage caused by the public works, does not measure that depreciation (2018); reparation in kind through a right of way requires the owner’s consent (2025).
Every item claimed gets an answer. Two of the three grounds for quashing concern a question left unexamined; the report therefore deals with each item raised by the parties, with its own method and evidence. The decision does not rule on the reference date; another reported 2019 decision, in a separate case under the urban pre-emption right, deals with it: Reference date: redrawing the zone boundary is not enough.
What the valuer takes from it
- In a comprehensive development zone, building land requires utilities of a capacity suited to the whole zone; the judge must examine this when asked (since the decision of 8 January 2026, if only the utilities are disputed, the expropriating authority must prove their inadequacy).
- The judge must answer a pollution claim; the report examines it and, if it accepts it, quantifies it from the cost of the measures needed, in preference to a flat percentage.
- Depreciation of the remainder may be compensated whatever the nature of the property, building land included, provided it is shown.
- The report deals with each item raised by the parties, even to set it aside.
Further reading
The Compulsory purchase and pre-emption page describes the assignment, its timescale and its fee. The guide My business premises are compulsorily purchased and the glossary entries dépréciation du surplus, abattement and indemnité principale complement this article. On the reference date: Reference date: redrawing the zone boundary is not enough. On the same theme: Compulsory purchase in a ZAC: who must prove the utilities? and Compulsory purchase: a refused easement still leaves depreciation. The decision is available on Légifrance.
What next
Plots partly compulsorily purchased in a development zone, with a question of utilities, pollution or the remainder?
I examine the classification of the land at the reference date, including the capacity of the utilities across the zone, then quantify the effect of established pollution and the depreciation of the remainder, for the expropriation judge or an amicable 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).
