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A brief history of time

11 Nov 2021 / Courts Print

A brief history of time

If an unauthorised development has been in place for more than seven years, it is termed immune from prosecution, or unauthorised but immune. But whether such a development can avail of this immunity is not as straightforward as it might seem. Brian Robinson revs the DeLorean.

Section 157(4) of the Planning and Development Act 2000 provides: “(a) No warning letter or enforcement notice shall issue and no proceedings for an offence under this part shall commence (i) in respect of a development where no permission has been granted, after seven years from the date of the commencement of the development, (ii) in respect of a development for which permission has been granted under part III, after 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 period as extended under section 42.”

This is commonly known as the ‘seven-year rule’. Similar provisions apply with respect to civil injunctions pursuant to section 160(6)(a) of the 2000 act. This is the statutory time-limitation period within which enforcement action, whether civil or criminal, can be taken pursuant to part VIII of the act.

On the face of it, it seems pretty clear. Put simply, if an unauthorised development has been in place for in excess of seven years, no enforcement action can be taken, whether of a civil or criminal nature. While the development is unauthorised, it is what is termed ‘immune from prosecution’ or ‘unauthorised but immune’. However, ascertaining whether or not a particular unauthorised development can avail of the immunity afforded by the seven-year rule is not as straightforward as it might seem.

What’s another year?

In Browne v Kerry County Council, the High Court had to consider the application of time periods in the 2000 act by reference to the control of quarries. Under section 261(6), the planning authority had the power to impose conditions on the operation of a quarry in various circumstances and had a period of two years within which to do so.

In Browne, the local authority purported to impose conditions on the applicant’s quarry on the precise day that the two years were up. The applicant argued that the conditions had not been imposed within the two-year period and were, therefore, ultra vires the council and not applicable.

Mr Justice Hedigan considered the provisions of section 251 of the act. This deals with the calculation of time periods under the act. Section 251 provides: “(1) Where calculating any appropriate period or other time limit referred to in this act or in any regulations made under this act, the period between the 24th day of December and the 1st day of January, both days inclusive, shall be disregarded. (2) Subsection (1) shall not apply to any time period specified in part II of this act.”

Having considered the statute and other matters, Mr Justice Hedigan concluded that section 251 extended the two-year time period in section 261 by nine days in respect of each year, effectively providing for a total time period for the imposition of conditions of two years and 18 days in that instance. As a result, the council in Browne was, in fact, within time.

This reasoning does not only apply to quarries and section 261. It is clear that section 251 deals with any “other time limit” referred to in the act. Furthermore, part VIII of the act is not excluded. Part II is specifically excluded under section 251(2). Accordingly, it is commonly accepted that the seven-year period referred to in sections 157 and 160 of the Planning and Development Act 2000 is, in fact, seven years and 63 days – an additional nine days for each year.

The seven-year rule

Sections 157 and 160 differentiate between two different circumstances – where planning permission has been granted and where none has been granted. The seven-year period relates to unauthorised development simpliciter, where no grant of planning permission has issued. When it comes to planning permissions, the statutory limitation period – or the seven-year rule – is extended even further.

Section 157(4)(a)(ii) provides that the seven-year time period commences after the time period of the planning permission expires. Section 40 of the Planning and Development Act deals with the limit of the duration of planning permissions. Section 40(3) provides that a planning permission has a lifespan of five years beginning on the date of the grant of permission or, in addition, such further period that may be specified in the grant itself.

Section 42 gives the planning authority the power to extend the appropriate period on application to it by a party to whom a planning permission was previously granted. The planning authority can extend the lifetime of a particular period by such additional period as the authority considers appropriate to enable the development to which the permission relates to be completed.

Given that planning permissions normally have a lifespan of five years, the reality is that, where planning permission has been granted, the seven-year rule is effectively 12 years from the date of the grant of permission.

Of course, the five-year time period of the planning permission is also subject to the provisions of section 251, as referred to in Browne. A planning permission effectively has a lifespan of five years and 45 days, being an extra nine days for each year. An additional nine days must be added for each of the five years of the permission, and also for each of the seven years under the seven-year rule.

Accordingly, where enforcement action is taken regarding a development for which planning permission has been granted, the statutory limitation period is 12 years and 108 days from the date of the final grant of planning permission.

When does time start?

Often, certain conditions of planning permissions, in particular financial conditions, provide that they must be complied with “prior to the commencement of development”. On occasion, these conditions are not complied with, and it could therefore be argued that unauthorised development commences on the day when works are first carried out and such conditions are non-compliant.

It could be argued that, for the purposes of the seven-year rule, time starts on the date that work first commences in non-compliance with a “prior to the commencement of development” condition. However, the provisions of section 157(4)(a)(ii) and section 160(6)(a)(ii) of the 2000 act are clear and unambiguous.

The date of commencement of devel-opment is only relevant where no planning permission has been granted. Where planning permission has been granted, it is clearly stated that the seven-year time period commences after the planning permission has expired. Irrespective of when the breach has actually occurred, the seven years only begin to run after the planning permission expires.

Use conditions

It should be noted that section 157(4)(b) provides a specific exemption from any limitation period with respect to any condition in a planning permission concerning the ‘use’ of the land to which the permission is subject. This states that “notwithstanding paragraph (a), proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject”. A similar provision regarding civil matters is contained in section 160(6)(b).

Accordingly, there is no limitation period on any enforcement action, civil or criminal, regarding a condition in a planning permission regulating the use of property. Section 157 of the act was commenced on 21 January 2002; section 160 was commenced on 11 March 2002.

Arising from this, it is my view that sections 157(4)(b) and 160(6)(b) of the act do not, and cannot, operate retrospectively. Accordingly, these provisions could only apply to any grant of permission subsequent to those respective dates.

Accordingly, any change of use from that which is permitted pursuant to a condition in a planning permission granted after these dates is actionable at any stage, irrespective of when such change of use has commenced. Some equitable issues – such as acquiescence, laches, or delay – may come into consideration but, ultimately, there is no statute of limitations with respect to use conditions in planning permissions.

For peat’s sake

For the sake of completeness, it should be noted that enforcement action can be commenced at any time with regard to development in the form of the operation of a quarry or the extraction of peat. This is pursuant to sections 28 and 29 of the Environment (Miscellaneous Provisions) Act 2011. This relates to both instances of unauthorised development simpliciter, and also where planning permission has been granted and it is alleged that the provisions of such planning permission are being breached.

Again, just as with use conditions, issues on retrospectivity and applicability apply, with sections 28 and 29 of the 2011 act coming into operation on 15 November 2011.

COVID time

The Emergency Measures in the Public Interest (COVID-19) Act 2020 gave the Minister for Housing, Planning and Local Government certain powers arising from the COVID-19 global pandemic. Section 9 of the act dealt with the calculation of time limits during the emergency with regard to planning and development.

Specifically, section 9 amended the Planning and Development Act 2000 for present purposes by introducing a new section 251(a). As inserted, the new section 251(a) specified that a certain time period be disregarded when calculating any appropriate period under the 2000 act. Section 251(a) was brought into force by way of SI 100/2020, the Emergency Measures in the Public Interest (COVID-19) Act 2020 (Part 3) (Commencement) Order 2020.

Effectively, a freeze commenced on time periods in the planning acts on 29 March 2020. This initially lasted until 20 April 2020, and was subsequently extended until 9 May 2020 and again until 23 May 2020. Ultimately, a time period of eight weeks or 56 days (from 29 March 2020 to 23 May 2020, inclusive) was excluded for the purpose of calculating time periods under the act.

Time keeps on slipping

The consequences of a finding of unauthorised development can be severe. Successfully argu-ing the seven-year rule can be a silver bullet in enforcement proceedings and can stop enforcement action in its tracks.

However, there are consequences following on from a finding of unauthorised development where, even though a development may be immune from enforcement, there are still restrictions over the property and what can be done with it.

Other issues arise when considering the seven-year rule, such as the burden of proof; whether replacement, alterations or repairs are permitted; the applicability of statutory and regulatory exemptions; and the distinction between works and use. Just like the rule itself, the consequences that flow if it doesn’t apply are not straightforward.

Ultimately, due to Browne and the COVID regulations, the seven-year rule for development where no planning permission exists is now the seven-year-and-119-day rule. The time period for enforcement action where planning permission has been granted is now 12 years and 164 days from the date of the final grant of permission.

Look it up

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Read and print a PDF of this article here.

Brian Robinson
Brian Robinson is managing partner of Benville Robinson Solicitors LLP, specialising in planning enforcement and section 160 planning injunctions