Expiry of Temporary Planning Permission

MadsL

Planning Scenario...

An (theoretical) advertising sign was granted permission in 98 with a planning condition that stipulated that it should be removed after expiration of 3 years.

The (theoretical) Planning Authority were requested to issue a Section 154 notice as the sign was now breaching the planning condition (Q: Am I correct in the assumption that there are no time limits for planning conditions?)

The Planning Authority respond stating that as the sign was not removed, it had become 'unauthorised development' in 2001 and that since the Planning Authority had taken no enforcement action before 2006 they were now statute barred from taking any action.

They were also asked to take note of Section 157 Subsection 4(b) of the Planning and Development Act 2000 whereby "proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject."

The Planning Authority argue that since the PP was for the replacement of the sign, the pre-existing landuse was advertising. Q: Can it not be argued that since the reason for the time limit was to allow the Planning Authority to review the land use in the light of planning policy prevailing at the time, S157 should in fact be invoked and the land use examined.

The notion in the heads of the Planning Authority seems to be that once an advertising sign is erected, even if a time limit is given, once they fail to enforce over a five year period, then the advertiser has an defacto planning permission until the end of time.

This seems to be based on an interpretation that development can move through the following stages.

1. Authorised Development (but temporary)
3 years go by
2. Now Unauthorised Development (five years)
5 years go by
3. Authorised again (with no time limit)

Can anyone give me any pointers on the Act or is there any case law that a removal time-limit means that after that period the development becomes unauthorised, and that after five years becomes authorised again??

dermot_sheehan

The issue in this case is that once the planning permission had expired in accordance with its own condition under section 34(4)(n) of the Planning and Development Act 2000, the planning permission itself seeks to exist, and the structure is at that point an unauthorised structure due to lack of planning permission and not due to breach of a planning condition.

This is due to section 40(2)(a)(ii) of the Planning and Development Act which provides a special period of duration of planning permission when there is specified a duration of planning permission as a condition of it.

Because of that, the permission itself lapses at the end of the time period. Seven years later proceedings under section 154, 157 and 160 become statute barred since it is not a breach of condition unauthorised development, but rather an unauthorised development for which no planning permission is in force.

This contrasts from a case where planning permission is given with a condition other then for the duration of the planning permission. In such a case, as per section 40(1) permission remains in force for the structures, and the breach of the condition itself gives rise to it being an unauthorised structure. In such a case, as you have noted, there is no time limit on commencing prosecutuins/enforcement proceedings.

MadsL

Thanks Gabhain, any thoughts on

40(2) (b) Subsection (1) shall not affect—
(i) the continuance of any use, in accordance with a permission,
of land,
(ii) where a development has been completed (whether
to an extent described in paragraph (a) or
otherwise), the obligation of any person to comply
with any condition attached to the relevant permission
whereby something is required either to be
done or not to be done.

Would this still permit enforcement of removal? Is there any case law on this?

Angel2009

Hi,
We have bought a site with fpp and the foundations HAVE to be dug in the next couple of months. However, I was just wondering if we will be given an extension as we have to change the name on the plans?Does it start off again instead of staying the same?Would appreciate any replies from anyone in the know!
Thanks.:)

nuac

Why "change the name on the plans".? The planning permission is attached to the property, and may subject to compliance with conditions be implemented by the owner of the property.

There may be copyright issues re use of plans and specs on which permission is issued, but that is not a matter for the planning authority.

Tom Young

Like legal advice and other professional advices, would the copyright in the work not subsist for and to the benefit of the commissioner of the work or in the case of legal advice the client?