When land subject to the urban pre-emption right (droit de préemption urbain, a local authority’s right of first purchase) is expropriated, the reference date (date de référence, the date at which its actual use and the planning rules applicable to it are frozen) follows the most recent of the acts of the local plan (PLU, plan local d’urbanisme) that delimit its zone. Does every amendment of the plan move that date? No, held the Third Civil Chamber of the Cour de cassation (French supreme court for civil and commercial matters) in a reported decision of 13 June 2019: an act that redraws the boundary of the zone without affecting its characteristics cannot be retained. For the valuer, the content of each act of the plan must be read, not just its date.
The facts
A plot belonging to a private owner, located within a perimeter subject to the urban pre-emption right, was expropriated for the benefit of the Montpellier area development company (Société d’équipement de la région montpelliéraine, SERM). By a judgment of 6 April 2018, the Montpellier Court of Appeal set the compensation due to the owner and retained 13 September 2012 as the reference date. The Cour de cassation’s decision does not state which act that date corresponds to, the amount of the compensation, or the nature of the plot.
The owner appealed. He argued that a resolution of 28 September 2016, made public on 18 October 2016, had amended the local plan and the delimitation of the zone in which his property lies, as the Court of Appeal had itself found. According to the appeal, that court nonetheless refused to retain the resolution on the ground that it had not changed the characteristics of the property but “only its delimitation” (translated from the French). The owner relied on articles L. 213-4 and L. 213-6 of the Planning Code (code de l’urbanisme): in his view, a resolution that amends both the plan and the delimitation of the zone sets the reference date.
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 13 June 2019, appeal no. 18-18.445, reported). It approved the Court of Appeal in these terms: “having found that, while the amendment to the local plan made on 28 September 2016 had changed the boundary of the zone in which the expropriated plot was located, it had not affected the characteristics of that zone, the Court of Appeal rightly deduced that this amending act could not be retained to set the reference date within the meaning of article L. 213-4, a, of the Planning Code” (translated from the French). The reference date therefore remained 13 September 2012.
The finding of fact, a boundary redrawn with no effect on the characteristics of the zone, is a matter for the Court of Appeal; the Cour de cassation held that it “rightly” (à bon droit) drew the consequence. An act amending the plan is therefore not enough by itself: its content counts. The Court does not define the “characteristics” of the zone, and the case of a plot that the amendment would move into another zone was not in issue.
What this changes for valuation
The regime first. The general rule freezes the actual use of the property one year before the opening of the public inquiry, the property still being valued at the date of the first-instance judgment (article L. 322-2 of the Expropriation Code). For property subject to the urban pre-emption right, outside a deferred development zone (zone d’aménagement différé), article L. 213-6 of the Planning Code refers to paragraph a of article L. 213-4: the reference date is the date on which the most recent of the acts making public, approving, revising or amending the local plan and delimiting the property’s zone became enforceable against third parties. In 2023 the Court held that this rule prevails over the ZAC rule (zone d’aménagement concerté, a concerted development zone) and that it also governs the classification as building land. These more recent decisions concern the choice of regime and its scope; they do not revisit the 2019 solution, which comes into play once the regime is settled, to identify the act that counts.
Read each act, not just its date. Over the years a local plan goes through amendments, revisions and conformity procedures (mises en compatibilité, adjustments of the plan required by a project), each with its own date of entry into force. The decision prevents the most recent one from being retained mechanically. The valuer compares, for each act, the regulations and maps before and after, and sets an act aside on the basis of this decision only if it can be shown that the act merely changed the boundary of the zone without affecting its characteristics. As the decision gives no definition, the report first examines what drives the value of land: the permitted use of the zone, buildability, and the rules on siting, height and footprint.
An exclusion that complements the 2018 one. On 25 January 2018 the Court had set aside the declaration of public utility (déclaration d’utilité publique, or DUP, the decision authorising the taking) bringing the local plan into conformity, as it is absent from the exhaustive list in article L. 213-4 (Pre-emption zone: plan-amending public utility act sets no date). The two decisions complement each other: the first excludes an act because of its nature, the second because of its content.
What the date freezes. Here, four years separate 13 September 2012 from the resolution of September 2016; the decision does not say what that gap changed for the compensation. In general, the stakes are the actual use of the land and its servicing by roads and utilities, which govern the classification as building land and the choice of comparables. The report attaches the plan in force at the date retained, describes the use and servicing of the land at that date, then selects references subject to the same planning rules (Pre-emption in France: comparables under the same planning rules). The question of utility capacity in a ZAC, decided by another 2019 ruling, is discussed separately (Compulsory purchase in a ZAC: utilities, pollution and remainder).
When the date is disputed. Each party argues for the act that suits it; the judge decides. The report can present the value at each of the dates in contention, with the zoning and references specific to each, and set out, for each act set aside, what it did or did not change in the zone.
What the valuer takes from it
- Under the urban pre-emption right, an act that changes the boundary of the zone without affecting its characteristics cannot set the reference date.
- The most recent act of the plan is not retained on its date alone: the valuer checks whether the act affected the characteristics of the zone, not merely its boundary.
- This exclusion by content adds to that of the declaration of public utility bringing the plan into conformity, excluded by its nature.
- The report traces the chronology of the plan’s acts, compares the regulations before and after each one, and attaches the plan in force at the date retained.
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 4 April 2019 on a partial compulsory purchase in a ZAC is discussed in Compulsory purchase in a ZAC: utilities, pollution and remainder. On the same theme: Pre-emption zone: plan-amending public utility act sets no date and Reference date in a ZAC: the urban pre-emption rule prevails. The decision is available on Légifrance.
What next
Expropriated land in a pre-emption zone, and a local plan amended several times?
I reconstruct the chronology of the plan's acts for the zone, identify the one that sets the reference date by checking what each amendment actually changed, and value the land according to its use and zoning at that date, 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).
