For expropriated land within a reserved site (emplacement réservé, land earmarked in the plan for a public road or facility), the reference date (date de référence, the date that freezes the property’s use and the planning framework of its valuation) follows a rule of its own: article L. 322-6 of the French Expropriation Code ties it to the most recent act making the plan enforceable and delimiting the zone of the reserved site. Does the order declaring the operation of public utility (déclaration d’utilité publique, DUP, the decision authorising the taking), which itself amends the plan, count among those acts? The reported decision of the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) of 24 May 2018 answers yes, if that order is the most recent of those acts.
The facts
By a prefectoral order of 6 December 2011, the project for the western bypass of Mende was declared of public utility; the same order brought the municipality’s land-use plan (plan d’occupation des sols, POS, forerunner of the local plan or PLU) into line with the project (mise en compatibilité, an amendment making the plan compatible with it). Plots belonging to four owners, within a reserved site, were expropriated for the benefit of the regional directorate for planning, environment and housing (DREAL) of Languedoc-Roussillon.
According to the expropriating body, the reserved site had been created only by the compatibility amendment of the POS, for the sole needs of the operation. Article L. 322-6 would therefore cover only a reserved site created outside any declaration of public utility, and the reference date should follow the general rule of article L. 322-2: one year before the opening of the inquiry preceding the declaration of public utility, that is 22 June 2010.
The Nîmes Court of Appeal, in a judgment of 6 February 2017, set the compensation. It took 6 December 2011, the date of the order, as the reference date, and valued the land with regard to its privileged location (situation privilégiée). The expropriating body, which had raised before it a possible loss of value linked to a landslide risk, appealed against the reference date and the compensation.
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 24 May 2018, appeal no. 17-16.373, reported).
On the reference date, it laid down the rule: “the order declaring the operation of public utility and entailing the compatibility amendment of the land-use plan is an act falling within the scope of article L. 322-6 of the Code of Expropriation for Public Utility” (translated from the French). It then approved the Court of Appeal’s finding that the order of 6 December 2011, which amended the POS for compatibility, was “the most recent act making it enforceable and delimiting the zone in which the reserved site was located”; accordingly, “the Court of Appeal rightly set the reference date on the day of that order”. The distinction put forward by the expropriating body, based on the origin of the reserved site, therefore failed.
On the compensation, the Court held that the Court of Appeal “was not bound to answer a mere allegation relating to a possible loss of value resulting from a landslide risk from which the expropriating body drew no precise consequence” and that it “did not value the expropriated land in consideration of the characteristics resulting from the local plan approved on 28 March 2012, but with regard to its privileged location”. That plan postdates the reference date; the Court noted that it was not the basis of the valuation, without stating a general rule on the point.
What this changes for valuation
Identify the regime before looking for the act. A plan-amending DUP order does not have the same effect under every regime. For land in a reserved site, article L. 322-6 displaces the general rule of article L. 322-2, one year before the inquiry. Under the urban pre-emption right, the Planning Code provides its own date, which also governs the classification as building land, as explained in Building land and pre-emption: the same reference date applies; and the decision of 25 January 2018 discussed in Pre-emption zone: plan-amending public utility act sets no date rules out that DUP as the reference date for property subject to that right. The valuer therefore first checks whether the plot lies within a reserved site. If so, they list the acts that successively made the plan enforceable, including a compatibility amendment by a DUP, and use the most recent of those that delimit the zone.
Another date, another state of the property. The date sought by the expropriating body, 22 June 2010, and the date retained, 6 December 2011, are nearly eighteen months apart. The actual use of the property and its planning framework are assessed at the reference date, whereas the property is valued at the date of the first-instance decision (article L. 322-2). The report therefore separates the date at which the property’s state is assessed (use, utilities, zoning) from the date of prices. It attaches the version of the POS resulting from the plan-amending order, including the zone regulations and maps.
A later plan is not the framework. That framework derives from the Code, not from the decision: the reference date is that of the most recent act making the plan enforceable (article L. 322-6), and the actual use is assessed at that date (article L. 322-2). The valuer therefore works from the plan enforceable at the reference date, not from a later plan such as the March 2012 one, and explains why. Where the valuation rests, as here, on the land’s privileged location, the valuer documents its basis at that date: proximity to built-up areas, roads and utilities, comparable land sales in the same surroundings. The article Partial compulsory purchase: classify the plot, not the strip shows that this location is assessed on the whole plot.
A loss of value must be shown and quantified. The landslide risk, raised without precise consequence, called for no answer. An allowance for a natural risk is presented with its evidence: geotechnical study, cost of adapted foundations or stabilisation, comparable sales exposed to the same risk, risk-prevention documents enforceable at the reference date. A draft risk-plan revision, neither approved nor annexed to the local plan, does not alter the approved plan, as the article Expropriated red-zone land: a draft risk plan does not count shows.
What the valuer takes from it
- For land in a reserved site, the DUP order that amends the plan for compatibility sets the reference date if it is the most recent of the acts making the plan enforceable and delimits the zone.
- The argument that the reserved site existed only through that compatibility amendment did not bring the Court back to the date one year before the inquiry.
- The land is valued according to its use and the plan at the reference date, at prices as at the date of the first-instance decision (articles L. 322-2 and L. 322-6); a plan approved afterwards is not the framework.
- A loss-of-value factor is quantified and supported; a mere allegation calls for no answer from the judge.
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, déclaration d’utilité publique and moins-value complement this article. Under the urban pre-emption right: Pre-emption zone: plan-amending public utility act sets no date. On the same theme: Reference date in a ZAC: the urban pre-emption rule prevails, on a planned development zone (zone d’aménagement concerté), and Reference date: redrawing the zone boundary is not enough. The decision is available on Légifrance.
What next
Land expropriated in a reserved site, and a plan amended by the declaration of public utility?
I identify the planning act that sets the reference date, including a public utility order that amended the plan to make it compatible with the project, and I value the land according to its use and location 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).
