Planning Permission indenture issue

marielle

Hello there,
I hope someone will be able to help me with this query.
I am building a house in the heart of Connemara and planning permission was granted back in November 2005 by Galway County Council.
I contacted a Mortgage Brokers to get a mortgage and as part of their service they gave me a list of solicitors of which I had to pick one to handle the process.
I picked a solicitor based in Greystones, Co Wicklow.
The Mortgage has gone through and we have made our first drawdown of the funds which will be delivered in stages as construction goes on.
The solicitor has now produced a document (indenture) which they say I must sign before I can get the next stage payment.
This document, which they have drafted to their own accord, is basically outlining a contract between myself and Galway County Council (the back of the document mentions section 38). Here is what the schedule of the document says:
“The use of the proposed house shall be restricted to use by the applicant, applicant’s family, heirs, executors and administrators or to persons involved in agricultural or related activities, returning immigrants or those with an essential housing need in this rural area, unless otherwise agreed by the Planning Authority for a period of 10 years. No development shall commence until an agreement embodying this provision has been entered into with the Planning Authority, pursuant to Section 47 of the Planning and Development Act, 2000. The period of restriction shall have effect from the date of first occupation of the house.”
This particular condition to the Planning Permission is indeed referred to in the planning document itself (C3) but the council never contacted me about signing any such contract and I have friends who were granted Planning Permission in the same area and build their house since and never were asked to sign this kind of document. What I’m wondering is : is such a document necessary?
Does this mean that signing such a document would actually add a burden on my folio that wouldn’t exist otherwise? I’m looking at the details of the indenture and here is what it says:
“The Owner hereby consents to the registration of this agreement as a burden on the said folio and for this purpose the owner hereby undertakes with the Council that immediately following the execution of this agreement by the parties hereto he will lodge it in the Land Registry.”
Basically, my question is: is my solicitor working against me rather than safeguarding my best interest here? If I don’t sign anything and the council don’t pick up on it, does this mean that I would be able to sell the house within the 10 years? Is this a loophole that I could be taking advantage of ? I am not planning on selling the house but hard coding into the folio that I can’t is something I am uncomfortable with, especially if I can avoid it.
I feel that my solicitor is bullying me into signing this against my best interest.
Am I right?
Thanks for any input.

Brando_ie

Get a copy of your grant of planning permission. Have a read through the conditions and see if there is a mention of the 10 year clause. It is likely to be in there, as more and more one off houses are being lumped with this or the slightly lesser 5 year clause.

Its likely that your solicitor is simply acting on the condition contained in the grant of permission. Should you choose to ignore the condition (whether the local authority spot it or not) then strictly speaking you are not in compliance with the grant of permission which would bring into question the validity of that permission.

That issue could well rear its head when you go to sell the house within the 10 years. Potential buyers may be put off by an invalid planning permission when reviewing the paperwork.

First stop. review the grant of permission.

muffler

It is a condition of your permission that you enter into a Section 38 agreement. As it is an agreement there have to be 2 parties - you and the Council so your solicitor is basically doing nothing wrong other than ensuring that you comply with one particular condition of the permission. Compliance with other conditions will be certified by your architect.

Your friends may have signed it but were unaware of it as there are lots of documents to sign with a solicitor and some people just sign their name without reading the document.

On the other hand maybe they didn't sign up to a Section 38 as it may not have been a condition of their permission if it was granted before a certain date or maybe their solicitors didn't follow it through. If the latter was the case it would most certainly be an issue if they ever wanted to sell again.

Im actually tempted to move this to the legal discussion forum but I will wait and see what pans out of this topic