When property 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 the use and planning rules of the property are frozen for valuation) follows the most recent of the acts that approved, revised or amended the local plan (PLU, plan local d’urbanisme) for the zone. Yet the declaration of public utility (déclaration d’utilité publique, or DUP, the decision authorising the taking) often itself brings the local plan into conformity with the project (mise en compatibilité). Does that act move the date? No, held the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) in a reported decision of 25 January 2018: the expropriated owner cannot profit from the added value the operation brings. For the valuer, the zoning to use remains that of the earlier plan.
The facts
Plots belonging to two owners and subject to the urban pre-emption right were expropriated for the benefit of the Provence-Alpes-Côte d’Azur public land agency (établissement public foncier). The owners applied to the expropriation judge (juge de l’expropriation) of the Alpes-Maritimes to have their compensation set.
They asked for the reference date to be set at 10 December 2013, the date of publication of the declaration of public utility bringing the local plan into conformity. On 2 June 2016, the Aix-en-Provence Court of Appeal set it at 30 January 2008, a date the appeal to the Cour de cassation describes as that of the approval of the plan having become enforceable against third parties, and set the compensation on that basis; the Cour de cassation’s decision does not give the amount.
The owners appealed to the Cour de cassation. In their view, the conformity procedure has the same purpose and effects as an amendment or revision of the plan, changing the applicable planning rules or the zoning, even though it follows a separate procedure; it therefore falls within article L. 213-4 of the Planning Code (code de l’urbanisme).
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 25 January 2018, appeal no. 16-25.138, reported). It noted that the Court of Appeal had “rightly held that, while the indemnities awarded must cover the whole of the direct, material and certain loss caused by the expropriation, the expropriated owners cannot however benefit from the added value brought to their property by the planning operations provided for by the expropriating authority” (translated from the French). It approved the consequence: the Court of Appeal “rightly deduced from this that the date of publication of the act declaring an operation of public utility and bringing the local plan into conformity was not among those exhaustively listed in article L. 213-4 of the Planning Code”. The reference date therefore remained 30 January 2008.
Two elements carry the solution. First, the word “exhaustively” (limitativement): the list in article L. 213-4 does not extend to an act of a different nature, even one that changes the zoning, and the appeal’s argument based on identical purpose and effects was rejected. Second, added value: using the conformity procedure would mean valuing the land under rules adopted for the very project that justifies the expropriation.
What this changes for valuation
Identify the applicable regime before looking for the act. The general rule sets the reference date one year before the opening of the public inquiry. 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 date is the one 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, without revisiting the 2018 solution. For land in a reserved site (emplacement réservé, land earmarked in the plan for a public project), the answer is the reverse: a decision of 24 May 2018, based on article L. 322-6 of the Expropriation Code, held that the public utility order which brings the land-use plan (plan d’occupation des sols, POS) into conformity and delimits the zone of the reserved site sets the reference date (Reserved site: the public utility order sets the reference date).
Draw up the chronology of planning acts. The valuer reconstructs the history of the planning acts for the zone, with the date on which each became enforceable, retains the most recent of those covered by article L. 213-4 and sets aside the declaration of public utility bringing the plan into conformity. The same strict reading led the Court, on 13 June 2019, to set aside a plan amendment that had merely redrawn the boundary of the zone without affecting its characteristics. The two decisions complement each other: one excludes an act because of its nature, the other because of its content.
Value under the plan of the date retained. The property is valued at the date of the first-instance judgment, but according to its actual use at the reference date (article L. 322-2 of the Expropriation Code), the date at which, under the pre-emption right, classification as building land is also assessed. Here, the 2008 plan is what counts, not the zoning resulting from the 2013 conformity procedure: more than five years separate the two dates, and building rights as well as price references may differ significantly. The report attaches the plan in force at the reference date, regulations and maps, and selects comparables subject to the same planning rules (Pre-emption in France: comparables under the same planning rules).
When the date is disputed. Each party argues for the date that suits it; the judge decides the point of law. The report can present the value at each of the dates in contention, with the zoning and references specific to each, and state which act it retains and why.
A solution justified by added value. The Court reasons on added value, but its conclusion concerns the act itself, which is absent from the list in article L. 213-4. The case of a conformity procedure that reduced building rights was not examined; if the question arises, the report flags it and quantifies both hypotheses.
What the valuer takes from it
- Under the urban pre-emption right, the publication of the declaration of public utility bringing the local plan into conformity does not set the reference date: it is not among the acts exhaustively listed in article L. 213-4.
- The reason: the expropriated owner does not benefit from the added value brought by the expropriating body’s planning operations.
- The valuer first identifies the property’s regime, urban pre-emption right or reserved site, before looking for the act: each has its own reference-date rule.
- The report traces the chronology of planning acts for the zone, identifies the one it retains and attaches the plan in force at that date.
- When the date is disputed, the report quantifies the value at each of the dates in contention.
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 droit de préemption complement this article. The same year’s decision on a reserved site is discussed in Reserved site: the public utility order sets the reference date. On the same theme: Reference date: redrawing the zone boundary is not enough 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 plan amended by the declaration of public utility?
I identify the planning act that sets the reference date under the pre-emption right, setting aside those the law does not retain, and I 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).
