Originally Posted by Poor Uncle Tom
I did not want to drag brundle's opening post any further off course, so I have started this thread here to debate the 'substantially completed' issue.
No problem at all - good thread husbanding.
I found the following Section 96 of the 2000 Act,
Paragraph 15, refers.
I realise this is in connection with the payment of contribution in connection with the provision of social and affordable housing but it is the explanation as to having the external walls completed by the expiration of the planning permission that I am interested in here.
The pre-2000 Act limit of 5 years for taking enforcement action arose in a High Court Decision about an advertising hoarding and was deemed to be the case long before being included in the 1994 Regulations.
This was further amended in the Planning and Development (Amendment) Act, 2002 Reversing Withering Provision / Imposition of Levy.
The above amendment Act came into force on the 24th December 2002 and provided for reverse of the impact of Section 96(15) of the Planning & Development Act, 2000.
Section 96(15) provided that permissions for residential development granted after 25th August 1999, but before the housing strategy is included in the relevant development plan in accordance with the Act, and to which Part V of the Act would have applied had the housing strategy been incorporated when the application for planning permission was made, would last until the 31st December 2002 or for 2 years from the date of grant of Planning Permission, whichever was longer. Planning permission would expire for those houses for which the external walls had not been built by the relevant date.
The amended Act removes that provision and provides that the normal rules concerning the duration of permission will apply to those permissions.
It is my belief that the above lead to houses becoming universally termed as 'substantially completed' once they reached the stage of having walls completed in the eyes of the Local Authorities.
I think you're right - I trawled the Acts for other references and found none.
Section 96 (15 is worth posting in full to this thread
(15) A permission granted under Part IV of the Act of 1963 or under Part III of this Act pursuant to an application made after 25 August 1999 and to which this Part would have applied if the application for permission had been made after the inclusion of a housing strategy in the development plan under section 94 (1), shall cease to have effect on 31 December 2002 or on the expiry of a period of 2 years from the date of the grant of permission whichever is the later, as regards—
(a) where the development to which the permission relates is not commenced by that date or the expiry of that period, the entire development, and
(b) where the development to which the permission relates is commenced by that date or the expiry of that period, any portion of the development consisting of buildings the external walls of which have not been completed, but without prejudice to the obligation on the person carrying out the development to fulfil the other requirements of the permission in relation to so much of the development as is not affected by this paragraph.
While this is not definitive and is now repealed, it defines a principle of planning law, which could be relied upon by an applicant seeking to make an application for Extension of Duration of Permission.
Because it is no longer current law however it is open to interpretation, but it would be a very poor decision by a planner to refuse the right to make an application based on this.
However I note that this principle centres on the right to continue to build, just as an application for Extension of Duration of Permission centres on that same right.
It does not suggest that the house is substantially complete within the meaning of the Act or per the requirements of a standard condition one wording "The development shall be carried out in accordance with the plans and particulars lodged, etc." It accepts that the intention to complete has been shown and that most of the work has been done.
I am of the opinion that for the house to be substantially complete in terms of the planning permission, it must have its structure and external envelope completed within the five year term - or, after an application for extension of duration, within the extended term. It is not substantialy complete within the meaning of the planning acts otherwise.
This completes and defines matters as they affect the public domain and planning law, but does not imply substantial completion for the purpose of issuing the architects Opinion of Compliance with Building Regulations.
Internal works may be covered by section 4(1)(h) of the 2000 Act, but I personally would resist issuing an Opinion of Compliance with Planning Permission where the house has no working toilet, kitchen, bathroom, or services.
Even in Commercial Developments, where Shell Only Opinions on Compliance may require to be issued for Units ready for occupation but not fitted out, (i) the services must be commissioned ready to be connected and (ii) to comply with the Fire Cert a smoke detector should be fitted to each unit, connected to the overall FD&A system and commissioned.
I would resist issuing shell-only Opinion of Compliance for Houses and Apartments.
Many, many thanks for finding that reference Tom. I think this has been a very useful exercise for me personally and I hope for others, as it focussed my attention on a matter I had little direct experience [my permissions have never run up against the limit] - but of course we may yet be corrected by someone offering definitive comment.