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The enforcer

The enforcer

Practical implications of ‘unauthorised but immune’



Why should an unauthorised developer be rewarded just because they have managed to evade enforcement under the seven-year rule? Brian Robinson looks at the practical implications of ‘unauthorised-but-immune’ developments.

In the November 2021 Gazette,we looked at the statutory limitation period for planning enforcement in sections 157(4) and 160(6) of the Planning and Development Act 2000, known as the seven-year rule.

We discussed how that rule and limitation period has been extended through case law and legislative enactment and, in some cases, abolished completely.

The enforcer

The enforcer

Successfully arguing that the seven-year rule stops enforcement action in its tracks does not regularise the development in question. It is termed ‘unauthorised but immune’.

The development is still unlawful. While no enforcement action can be taken, practitioners should be aware that there are still serious consequences for a development that has the status of being unauthorised but immune.

The relevant periods under the seven-year rule are seven years and 119 days for unauthorised development simpliciter, and 12 years and 164 days where a standard five-year planning permission has been granted, but not complied with.

Sudden impact

Unauthorised-but-immune status can also arise pursuant to court order. A court might find, in the context of a section 160 action, that a particular development is unauthorised, but decides to exercise its discretion not to order its demolition, removal, or cessation.

Howsoever arising, the practical consequences for an unauthorised development that is immune from enforcement action include the following:

1) Such a development is not entitled to benefit from the exempted development provisions of the Planning and Development Regulations. The relevant provisions are article 9(1)(a)(viii) for unauthorised structures and article 10 for an unauthorised use. This is a substantial restriction.

A practical example includes your standard 40-square-metre extension to the rear of a house. In the normal run of events, such an extension is exempt from planning if within the limitations of class 1 of part 1 of schedule 2 of the regulations. If such an extension is to an unauthorised dwellinghouse, the extension itself is also unauthorised and liable to enforcement.

This also applies where planning permission exists, but has not been complied with, either in full or in part. An example here is a permission for a house where substantial enough conditions have not been complied with, or perhaps financial contributions have not been paid in compliance with a condition attaching to the permission.

Having regard to substantial compliance, de minimis rules, and proportionality, a normally exempt extension could be deemed unauthorised, depending on the extent of non-compliant conditions. To make the extension planning-compliant would require the outstanding conditions to be complied with or the financial contributions to be discharged that had initially become immune from payment.

Where an unauthorised use is being carried out, it is not permitted to change use to an otherwise exempted use under part 4 of schedule 2 of the regulations. A practical example of this would be a change of use from one shop use to another shop, which does not contravene a condition in a planning permission, and otherwise complies with the regulations. If the initial shop use is unauthorised in the first instance, a normally exempted change of use under part 4 is not permitted.

2) It is also likely that the statutory exemption allowed for under section 4(1)(h) of the 2000 act does not apply to unauthorised development either. Section 4(1)(h) allows for, among other things, repairs and maintenance without the necessity for planning permission.

While there is no specific authority on the point, the cases of Fingal County Council v Crean and Signways Holdings Limited (2001), Sligo County Council v Martin (2007), Cork County Council v Slattery Pre-Cast Concrete Limited (2008), and Cronin (Readymix Limited) v An Bord Pleanála (2017) all indicate that an unauthorised-but-immune development cannot avail of this exemption.

A practical example would be repairs to the roof of an unauthorised dwellinghouse. Normally, such works would be exempt under section 4(1)(h). 

However, if the house itself is unauthorised, any repair works thereto are, in all likelihood, unauthorised as well.

3) Practitioners should also be aware of the distinction between works and use. A structure may have become unauthorised but immune, but the actual use of the structure may not commence until some time later. It may then be possible to maintain and take enforcement action against the material change of use, as they are two separate and distinct developments. The decision of Clarke J in Cork County Council v Slattery Pre-Cast Concrete Limited is authority for this position.

4) Unauthorised status also impacts on other rights and entitlements under different statutory codes or regimes. If a particular statutory regime requires compliance with the planning laws, unauthorised but immune does not equate to planning compliance.

Terry v Stokes (1993) shows that benefits under the landlord-and-tenant legislation do not apply when dealing with an unauthorised, albeit immune, structure. In Stokes, the landlord respondent was refused statutory relief where the premises in question comprised unauthorised but immune development.

In Dunnes Stores v Dublin City Council (2017), the applicant sought a licence from the respondent council for street furniture. A condition of the licence was that awnings were to have planning permission. No planning permission existed, but the awnings were immune from enforcement.

The court found that, in the absence of an actual grant of planning permission, unauthorised but immune was not the same thing, and this precluded the granting of the licence.

In O’Connor v Nenagh UDC (1996), Geoghegan J suggested, obiter, that an unauthorised-but-immune development would preclude an applicant for a liquor licence from being entitled to hold such licence where the building was not planning-compliant.

If applying for a waste authorisation (licence, permit or certificate of registration), any facility will need to be planning compliant. Put simply, unauthorised-but-immune development is not planning compliant if it might have an impact on any waste-authorisation application.

Accordingly, you cannot avail of benefits afforded under other statutory provisions where planning permission is required but a development is unauthorised but immune. There are knock-on consequences for other statutory entitlements.

5) There can also be problems when it comes to compensation. For example, section 190 of the Planning and Development Act 2000 allows for compensation to be paid in certain circumstances. However, this is nullified by section 191(4) of the act, which says: “Compensation under section 190 shall not be payable in respect of the refusal of permission, or of the imposition of conditions on the granting of permission, for the retention on land of any unauthorised structures.”

A similar position applies to compulsory purchase orders. Paragraph 2(b)(v) of the second schedule to the act states that, in determining values: “No account shall be taken of … any value attributable to any unauthorised structure or unauthorised use.” It is arguable that the arbitrator should treat the lands as if the use was never carried out, or the structures were never on the lands, and value accordingly.

From a practical point of view, if a client bought a building that was unauthorised but immune, and was later CPO’d, they could end up getting agricultural value for it. No doubt they would be asking questions subsequently, if not advised in advance.

6) Importantly for practitioners, there are serious consequences for title purposes. If purchasing an unauthorised-but-immune development, title must be qualified with any lending institution. While there is no statutory definition of a good marketable title, planning is a fundamental part of the title to any property.

Acceptance of this qualification on title by the bank or lender should not be taken for granted. Care has to be exercised. It may not be good enough to obtain a declaration to the effect that the development has been in place for in excess of seven years and 119 days, or 12 years and 164 days, whichever the case may be, and that no notices have been served.

A lender will want to know the commercial consequences of such a status. There will be possible difficulties regarding any future sale of the property. The unauthorised status will affect the ability to sell on and also affect the possible resale value. It restricts any further extensions, additions, or alterations.

There are likely to be restrictions on the pool of possible future purchasers. If qualifications on title are not being accepted, it may be that only cash buyers will be in a position to purchase a particular unauthorised property. Any potential purchasers should be advised of these difficulties.

7) There may also be difficulties in obtaining planning permission into the future. This relates not only to the particular development in question, but also to other developments by the same developer.

Consolidation of unauthorised development can often be cited as a reason for refusal of a planning application with respect to further development. An existing unauthorised development, even though immune from enforcement, can have an impact on applications for other developments on the same site.

Another possibility is that a local authority could insert a condition into a grant of permission that any existing unauthorised development, even though immune from enforcement, be removed or cease, as the case may be.

Section 35 of the act also allows a planning authority to consider previous planning transgressions. This procedure is primarily aimed at rogue developers or serial unauthorised developers.

However, if the planning authority is of the view that there is a real and substantial risk that the development for which planning is sought would not be completed in accordance with a permission if granted, or any conditions attaching thereto, they can decline to consider the application.

Section 35 can apply not only to applications for permission on lands where previous unauthorised development has been carried out, but it is quite possible that an unauthorised-but-immune development at one end of the country could be used to justify a notice under section 35 regarding an application by the same developer for planning at the opposite end of the country.

Accordingly, the existence of an unauthorised-but-immune development can clearly have an impact on other developments for which permission is being sought, whether on the same site or elsewhere.

8) Finally, it should be noted that section 46 of the Planning and Development Act 2000 contains a truly remarkable power that effectively enables a local authority to serve notice requiring that any particular structure be demolished, removed, altered, or replaced; any use discontinued; or conditions imposed on the continuance of a use, in exceptional circumstances. This is whether the development in question is authorised or not.

Section 46(2) specifically envisages application of the section to unauthorised-but-immune developments, stating that the section does not apply to unauthorised development of less than seven years. Obviously, if the unauthorised development is in place less than seven years, enforcement proceeds by way of section 160 injunction.

Even if a development is unauthorised but immune, there is still a mechanism under section 46 whereby such development can be stopped, removed, discontinued, or whatever the case may be. Section 46 is far more likely to be invoked with respect to an unauthorised development, as opposed to an authorised development.

Magnum force

The general obligation to obtain planning permission is set out in section 32 of the Planning and Development Act 2000. Permission is required for any development of land that is not exempted development, and for retention of unauthorised development.

Those who comply with the law, obtain planning permission, and comply with it obtain legal entitlements and practical benefits that flow from compliance with the law. Those that do not so comply cannot avail of such consequent entitlements and benefits.

In practice, conveyancers, when presented with an unauthorised development, may accept the simple declaration referred to above. Such a declaration should not be taken without question, and appropriate enquires should be carried out. It should also be noted that, usually, this is a declaration from a private individual.

There is no professional indemnity insurance backing it up. If it is incorrect, it may not be worth the paper it is written on.

While section 6 of the Criminal Justice (Perjury and Related Offences) Act 2021 makes it a criminal offence to knowingly make a false statutory declaration, this will be of little use or comfort to a client that has bought an unauthorised development in reliance on a declaration, if this is subsequently the subject matter of enforcement proceedings by a local authority that are, in fact, within time.

A purchaser of an unauthorised development is not ‘home-and-hosed’ just because a vendor provides such a declaration and the bank accepts it as a qualification on title. There are also the serious practical consequences as detailed above, which should be advised to clients. 

The dead pool

It has been argued that unauthorised-but-immune developments should be treated as existing or established developments – and not tagged with an unauthorised status with resultant difficulties.

It is also argued that there are constitutional issues due to an alleged disproportionate interference in constitutionally protected property rights. However, it is clear that the courts do not take that view, and that such developments are still treated and regarded as being illegal.

Perhaps this is due to the provisions of section 151, whereby an ongoing criminal offence is being committed. Perhaps it is due to the fact that members of the public have been disenfranchised from participating in their democratic and statutorily prescribed right of participation in the planning process.

Perhaps it is due to the huge public and community interest in protecting the environment and the integrity and efficacy of planning-law enforcement. Or perhaps it is simply that the development should not have been carried out in the first place.

Why we have planning laws and the importance of enforcement was considered in Wicklow County Council v Kinsella (2015) and, more recently, in Meath County Council v Murray (2017). There is also a general rule of law that one cannot benefit from illegal behaviour or activity.

There is a positive statutory obligation on all citizens to apply for planning permission for development that is not otherwise exempted development. If everybody else has to do it, why should the unauthorised developer be rewarded for not complying with the law and have the same benefits and legal rights as others, just because he or she has managed to evade enforcement under the seven-year rule?

Perhaps being permitted to keep the unauthorised structure or to continue the unauthorised use is enough. Arising from that, there are serious consequences and restrictions that follow.

Look it up

CASES:

LEGISLATION:

Read and print a PDF of this article here.

Brian Robinson is managing partner at Benville Robinson LLP, Solicitors, Bray, Co Wicklow.