ZAN and stay of decision: the land risk settling into transaction timetables

A plot under a preliminary agreement in the outer Paris suburbs, a local urban plan (plan local d'urbanisme, PLU) under revision, a planning department that defers its answer: the sequence has become commonplace since local authorities began building the land-take reduction trajectory into their planning documents. For an investor, the risk is no longer only that of a refusal of planning permission; it is the risk of time: a two-year stay of decision (sursis à statuer) destroys the economics of a transaction whose carrying costs were calibrated over twelve months. The difficulty is that this risk materialises after the preliminary agreement is signed, through decisions whose legal basis did not yet exist on the date of the due diligence. This analysis deals with the channels through which the net zero land take objective (zéro artificialisation nette, ZAN) translates in practice into stays of decision, refusals and, where applicable, the right of abandonment (droit de délaissement), and then with how this risk should be reflected in the drafting of sale agreements and conditions precedent.

How a planning objective reaches an individual permit

Article 191 of Law No. 2021-1104 of 22 August 2021 on combating climate change and strengthening resilience to its effects, known as the Climate and Resilience Law, sets two milestones: halving the rate of consumption of natural, agricultural and forest land (ENAF) over the decade 2021-2031 compared with the previous decade, and then achieving no net land take in 2050. According to the national portal on land take (Cerema), the reference consumption was of an order of magnitude above 20,000 hectares a year over 2011-2021. The effort is therefore massive and, above all, it is territorialised.

ENAF consumption and net land take are not measured in the same way

The distinction is structural for a purchaser. Until 2031, the count is made in terms of consumption of natural, agricultural and forest land, that is, in hectares, using a cadastral and physical approach. From 2031, the count shifts to net land take, within the meaning of the nomenclature set by Decree No. 2023-1096 of 27 November 2023 on the assessment and monitoring of land take, taking renaturalised areas into account. A project that consumes little ENAF in the first period may fall under a different regime in the second, and vice versa. Since the decrees of October 2022 were partially annulled by the Conseil d'État in autumn 2023 and then replaced by Decrees No. 2023-1096 and No. 2023-1097 of 27 November 2023, the instability of the measurement framework is itself part of the transaction risk.

The timetable for cascading down into planning documents

Law No. 2023-630 of 20 July 2023 aimed at facilitating the implementation of the objectives for combating land take rearranged the time limits for integration: amendment of regional schemes (SRADDET, and SDRIF-E in the Île-de-France region) before 22 November 2024, of territorial coherence schemes (SCoT) before 22 February 2027, and of local urban plans, inter-municipal local urban plans and communal maps before 22 February 2028. It also introduced a minimum communal guarantee of one hectare for municipalities covered by a planning document and a national lump sum of 12,500 hectares for projects of national or European scale.

For an investor, these dates are not a matter of planning technicalities: they define a window of several years during which each municipality will decide, plot by plot, how to allocate a constrained land envelope. It is during this window that stays of decision are concentrated.

The ZAN stay of decision: a transitional mechanism grafted onto a permanent regime

The ZAN stay of decision in the strict sense results from Article 5 of the Law of 20 July 2023. It allows the competent authority, until the entry into force of the planning document amended to integrate the objectives for reducing ENAF consumption and at the latest until 22 August 2026, to stay its decision on an application for authorisation whose implementation would lead to excessive consumption of natural, agricultural and forest land in light of the objectives now set. It is exercised under the conditions of Article L. 424-1 of the French Urban Planning Code.

Two errors of assessment are common among purchasers.

The first is to believe that the expiry of this transitional mechanism will make the risk disappear. It will not. The ordinary-law stay of decision under Article L. 424-1 remains available, in particular on the basis of Article L. 153-11 of the same Code, which authorises a stay once the debate on the general guidelines of the planning and sustainable development project has taken place within the deliberating body. Almost all municipalities and inter-municipal bodies are in fact undertaking a revision of their PLU in order to meet the February 2028 deadline. The ground for a stay is therefore available, continuously, until the revised document is approved. A stay based on revision of the PLU is moreover more convenient for the authority than the specific ZAN stay, since it does not require showing that ENAF consumption is excessive, but only that the project would be liable to jeopardise or make more onerous the implementation of the future plan.

The second error is to treat the stay as a mere adjournment. The stay is an administrative decision adversely affecting the applicant, open to challenge for abuse of power within two months. Article L. 424-1 requires it to be reasoned and limits its duration to two years. At the end of that period the authority cannot impose a new stay on the same application on the same ground. The applicant must confirm its application within two months following the expiry of the stay's period of validity, the authority then having to decide within two months, silence amounting to a decision of acceptance. This confirmation mechanism is a classic timing trap: failure to confirm within the period loses the benefit of the processing already done and requires a fresh filing, and therefore exposure to the law applicable on the date of the new filing, which will most often be the revised PLU. The ways of neutralising such a blockage are set out in our article on the stay of decision on a planning permit.

Refusal of permit and ZAN: identifying the ground that can actually be relied on

A refusal of planning permission on ZAN grounds cannot be issued solely by reference to a land-sobriety objective. Article L. 421-6 of the French Urban Planning Code makes issue conditional on the project's compliance with the legislative and regulatory provisions on land use. The quantified objectives of a SRADDET or a SCoT cannot be directly relied on against an individual authorisation: they bind lower-level documents under a compatibility relationship, not the applicant. Challenging a refusal that merely invokes the net zero land take trajectory without a supporting planning rule therefore remains litigation with a high success rate.

The real risk lies elsewhere, in the transformation of the objective into an enforceable standard.

• The reclassification, on revision of the PLU, of zones to be urbanised as agricultural or natural zones, which extinguishes building rights without compensation.
• The application of Article L. 153-31, 4° of the French Urban Planning Code, which requires a revision procedure to open to urbanisation a zone to be urbanised that was created more than nine years ago and has not been the subject of significant land acquisitions: buying old 2AU land means buying a procedure, not a right.
• The tightening of the rules on density, building footprint or treatment of permeable surfaces, which reduces the floor area that can be built without formally closing off the plot.
• In municipalities subject to the national urban planning regulation (règlement national d'urbanisme), the limited buildability rule of Article L. 111-3, which confines construction to the urbanised parts of the municipality.
• The exercise of the urban pre-emption right on the declaration of intention to sell, the authority possibly preferring to take control of the land rather than let the transaction go ahead.

Non-compensation is the rule here. Article L. 105-1 of the French Urban Planning Code lays down the principle that planning easements give rise to no compensation, administrative case law admitting an exception, restrictively, only where the owner bears a special and exorbitant burden out of proportion to the general-interest objective pursued. An investor who buys land classified AU and sees it reclassified as A two years later has, in principle, no claim for compensation against the authority.

The right of abandonment: an exit to be activated before the PLU is revised

Where a stay of decision has been imposed, Article L. 424-1 gives the owner the right to serve notice on the authority that took the initiative for the project to acquire the land, under the conditions of Articles L. 230-1 to L. 230-6 of the French Urban Planning Code. This right of abandonment is the only mechanism that turns an administrative blockage into an obligation to acquire.

The regime is well known: the authority has one year from receipt of the notice at the town hall to give its decision; where there is an amicable agreement, the price must be paid no later than two years after that receipt; failing agreement, the expropriation judge (juge de l'expropriation), seised by either party, orders the transfer of ownership and fixes the price as in expropriation matters, excluding any ancillary compensation, in particular the reinvestment allowance.

Three points of vigilance determine the effectiveness of the lever.

First, the reference date. The price is determined by taking into account the date on which the most recent planning document delimiting the zone in which the land is located became enforceable. In other words, if the revised PLU reclassifies the land as agricultural before the right of abandonment has been initiated, the valuation will be made on an agricultural basis. The trade-off is therefore chronological: abandonment is decided during the stay period, not after the new document is approved.

Second, identifying the debtor. The text refers to the authority that took the initiative for the project. A stay based on the revision of an inter-municipal PLU or on the ZAN trajectory is not tied to a planning project identified in the traditional sense, which feeds a serious debate on the identification of the public body required to acquire and, more broadly, on the effectiveness of abandonment in this context. This uncertainty must be factored in from the outset: abandonment cannot be presented to an investment committee as a guarantee of liquidity.

Third, the standing of the applicant. The right of abandonment belongs to the owner. A beneficiary of a preliminary agreement who has not exercised the option cannot exercise it. The interplay between the preliminary agreement and abandonment must therefore be dealt with in the instrument itself: who benefits from the decision to begin the procedure, who bears the cost, and what becomes of the immobilisation indemnity if the promisor abandons.

Reflecting the risk in the preliminary agreement: the condition precedent must name the stay

This is the drafting point most often missed. A standard condition precedent of obtaining planning permission does not characterise the stay of decision. Legally, the stay is neither an acceptance nor a refusal: it is a postponement of the examination. While the period runs, the condition is neither fulfilled nor failed, and the parties remain bound in an uncertainty that the preliminary agreement has not provided for.

Expressly characterising the event

The instrument must provide that a decision to stay, whatever its basis, has a specified effect: either it amounts to failure of the condition at the end of a stipulated period, or it opens a right of unilateral extension for one of the parties, or it triggers a structured renegotiation of the price. What matters is that the effect is stipulated, and that the three cases of express refusal, tacit refusal and stay are distinguished. It is also prudent to cover the case of a permit issued for a floor area below a threshold, which is the most common form of ZAN tightening. The drafting of the condition of a permit free of appeals is dealt with separately in our article on securing a land acquisition subject to a planning permit condition.

Calibrating the duration and cost of carrying

A two-year stay, plus the two-month confirmation period, the processing period, then the three-month withdrawal period provided for in Article L. 424-5 of the French Urban Planning Code and the period for third-party appeals, leads to preliminary agreement durations that are incompatible with market standards. The clauses to be built are less a matter of planning law than of contractual engineering: a progressive immobilisation indemnity, an escrow releasable in tranches, extensions conditional on payment of supplements not deductible from the price, an early exit clause on notification of a stay, and indexation of the price to the actual carrying period. The amount, escrow and return of this indemnity are examined in our article on the immobilisation indemnity and disputes over it.

Making the price elastic to buildability

Where the uncertainty concerns the volume authorised rather than the principle of building, the answer is a price expressed per square metre of floor area actually authorised by a permit free of appeals, with a floor and a ceiling. A deferred price supplement, on the model of an earn-out, is relevant for land whose buildability might be restored on a later amendment of the PLU: the seller accepts an immediate discount in return for a share in the future planning gain, the payment period being aligned with the revision horizon of the document.

Imposing the steps to be taken and organising litigation

Article 1304-3 of the French Civil Code deems a condition fulfilled where the party with an interest in it has prevented its fulfilment, but penalising passivity still presupposes that the expected steps have been defined. The preliminary agreement must therefore fix the filing timetable, the content of the file, the arrangements for dealing with the planning department, and above all specify whether the beneficiary is required to bring an administrative appeal and then court proceedings against an unfavourable decision. In the absence of an express stipulation, the beneficiary is in principle not obliged to begin litigation in order to meet its duty of diligence. For a seller, the absence of this clause amounts to leaving the purchaser to decide alone the fate of the sale.

Land due diligence: what must be checked before signing

The audit of a plot can no longer be limited to the zoning in force. It must cover the trajectory of the planning document and the municipality's remaining land resource.

• The resolution requiring the revision or preparation of the PLU, whether the debate on the PADD has been held within the meaning of Article L. 153-12 of the French Urban Planning Code, which opens the right to stay, and the forecast timetable for approval.
• The guidelines already settled in the SCoT and, in the Île-de-France region, the implementation of the SDRIF-E, with the ENAF consumption envelope allocated to the area.
• The existence of a study perimeter within the meaning of Article L. 102-13, a reserved site, a deferred development zone or a development operation capable of founding a stay on another basis.
• The age of the classification as a zone to be urbanised, in light of the nine-year period in Article L. 153-31, 4°.
• An operational planning certificate (certificat d'urbanisme opérationnel) under Article L. 410-1, the issue of which crystallises for eighteen months the planning provisions and the regime of applicable taxes and contributions. Its scope must nevertheless be explained to the investment committee without optimism: crystallisation freezes the rules, it does not neutralise the right to stay a decision.
• The minutes of municipal or inter-municipal council meetings, which often reveal, several months before any formalisation, the political direction on urban extensions.

This documentation is not meant to reassure: it is meant to be translated into clauses and price. Land acquired at a discount in a municipality whose ENAF envelope has already been used up is not a bargain; it is a long carry disguised as an opportunity.

Challenging: procedural strategy determines the applicable law

Litigation over stays and refusals follows a logic of crystallisation. Two months to apply to the administrative court, a review by the judge covering the reasons given for the decision, the reality and stage of progress of the procedure relied on, and the existence of a real risk of jeopardising the future document.

Article L. 600-2 of the French Urban Planning Code deserves particular attention here. Where a refusal of authorisation is annulled, an application confirmed by the applicant within six months of notification of the annulment cannot be the subject of a new refusal based on planning provisions that came into force after the date of the annulled decision. In a period when PLUs are being revised at a forced pace, this mechanism is the main tool for freezing the applicable law: it turns an annulment by the court into a genuine right to build under the old rules. The application must still be confirmed within the period, which presupposes that the preliminary agreement anticipated this obligation and designated who is responsible for it.

Finally, the conduct of the appeal is tied in with the decision on abandonment. Bringing an appeal against the stay and, at the same time, serving notice on the authority to acquire is not contradictory: it is a two-pronged strategy that places the public body before the budgetary cost of its land policy.

Conclusion

For the most part, the net zero land take trajectory does not produce litigation over illegality: it produces a lengthening and an uncertainty of timetable that standard land structures do not absorb. The tipping point is not the approval of the revised PLU; it comes earlier: it is the debate on the PADD, which opens the right to stay and which most often takes place without any useful publicity for a purchaser. As long as the trajectory set by the Law of 20 July 2023 is not changed by the legislature, this risk window will remain open until the February 2028 deadline for local documents.

The operational consequence is simple. Before any signing, have the progress of the procedure for changing the PLU and the municipality's remaining ENAF consumption envelope checked, then require the preliminary agreement to characterise the stay of decision expressly, separately from refusal, with a dated and quantified effect. And if a stay is notified, the choice between appeal and abandonment must be made before the revised document enters into force: after that date, the value of the land will already have been fixed by the new zoning.

Frequently asked questions

Until when can the ZAN stay of decision be imposed? The specific stay of decision introduced by Article 5 of Law No. 2023-630 of 20