Planning permission, enforcement and the seven-year myth
11 July 2013
Author: Padraic Higgins BE MIEI, director, NuArk Management Limited
There seems to exist a common misconception regarding the time lines for compliance with planning permission requirements amongst both the general public and, indeed, people within the engineering and construction industries.
I frequently get asked by clients if they are still required to comply with the requirements of a planning permission if the permission is more than seven years old, or if the structure is in existence for more than seven years. Others seem to be of the opinion that a purchaser is unreasonable in seeking planning compliance for a structure that is more than seven years old.
On occasion, it has even been suggested to me that a structure without planning permission is effectively permitted after a period of seven years from its completion.
I therefore feel that there is a need for clarity on the matter. The relevance of the seven-year period when it comes to planning is this: seven years is the time limit for the application by a local authority to the High Court for an injunction in relation to unauthorised developments.
The commencement of the seven-year period depends on whether the development relates to a planning permission or whether the development has no related planning permission.
The Act (Planning and Development Act 2000) Section 160 (6) states:
‘(6) (a) An application to the High Court or Circuit Court for an order under this section shall not be made—
(i) in respect of a development where no permission has been granted, after
the expiration of a period of 7 years from the date of the commencement of the development, or
(ii) in respect of a development for which permission has been granted under
Part III, after the expiration of a period of seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40) or, as the case may be, of the appropriate period as extended under section 42.’
To put it simply, this means that if a development exists where no planning permission was granted, then seven years after the commencement of the development, the relevant local authority will no longer be able to apply enforcement action.
However, it must be borne in mind this does not mean that a default permission now exists. All that exists is a development without planning permission that is now exempt from enforcement action. Rectification of the planning status will still be required if any subsequent alterations or statutory applications are to be made or, indeed, in most cases where the related property is to be sold.
Where an unauthorised development exists where planning permission has been granted, then the time limit for enforcement action is generally 12 years from the date of issue of planning. This is calculated by applying the seven-year limit to the date of expiration of the planning permission.
Unless the period has been extended under Section 42 of the Planning and Development Act 2000 (as amended), this is a period of five years from the date of grant of permission.
Again, all that is provided by this lapse of time is protection from enforcement action and it does not mean a default compliance.
Any future alterations or extensions to the development or other statutory applications will almost certainly require the rectification of planning status of the existing development.
The rectification of an unauthorised development can be done in two ways: the first is the correction of the relevant non compliance or the receipt of a subsequent permission for the retention of the unauthorised structure.
The latter option of a retention application comes with no comfort of success and, even if it is successful, it can be expensive and can result in further onerous conditions.
BLOCK TO SALE
Notwithstanding all of the above, there have been cases brought to my attention where minor non compliances with a planning permission were being presented as a block to the sale of a property. Oftentimes, this situation can be no more than an attempt to gain a discount from the vendor or as a result of an over-cautious legal team.
Where this situation arises, it should be noted that it is rare that the planning authority would waste time in pursuing minor non compliances. However, as noted below, this is still solely at the discretion of planning authority concerned.
Section 152 (2) of the Planning and Development Act 2000 states:
‘(2) Notwithstanding subsection (1), where the development in question is of a
trivial or minor nature, the planning authority may decide not to issue a warning letter.’
In summary, then, the only way to proceed with any development is in accordance with the statutory requirements. It is clear that the lapse of time provides little comfort where a development is not planning compliant.
In my own humble opinion, as with all other areas of life, it is as easy do the right thing as it is to do the wrong thing.
Qualified in civil engineering and a member of Engineers Ireland, Padraic Higgins has over 14 years’ experience in all facets of the construction industry. From 1997 to 2001, as site engineer for a leading development firm, Higgins worked on projects for housing, mixed-use and commercial developments. From 2002, he worked with one of Ireland’s leading construction firms, where he managed a variety of projects in the public, private and commercial sectors. As contracts director for this firm from 2006 to 2010, Higgins managed projects to the value of €72 million.