Planning Authority

YouWantWhat

Hi there,

just wondering if someone on this forum could clarify something for me (not looking for legal advice), here's the storey :

I'm looking after the construction of a house for a client of mine, which is now nearing completion. We have a very difficult neighbour, who has a history with my client's late parents and he has been complaining to just about everybody since we started on site. The planning officer has been to the site several times, the town clerk has been out, the health and safety officer has been out three times, and the number of politicans coming and going, you would not see the likes of it in the Dáil. The planners have their own separate file with just this guys letters of complaint covering just about everything you can think of.
During construction we made a few minor changes to the building and of course the council new about these immediately, and to satisify the neighbour they served us with a warning letter. We responded to this and the planning authority have stated in black and white that none of the changes either individually or collectively are in breach of our planning permission.
The neighbour, obviously not happy with this response has taken things into his own hands, employing a solicitor and engineer, and are proposing to take us to court on the grounds that the building is not in compliance with planning.
My question is this : is he legally entitled to take this action (over-riding the planning authority) challanging us directly on planning matters, surely he should be challanging the planning authority?

Thanks in anticipation.
(Hope I have not bkoken any rules with this question)

dermot_sheehan

http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0160.html#sec160

160.—(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.

YouWantWhat

Hi gabhain7,
thanks for the reply.
The Act refers to unauthorised development. We have made the planning authority aware of our changes and they have said (in writing to the neighbour who complained) that the alterations do not contravene our planning permission. I would understand from this, and it has always been my understanding that the changes we made were exempted development, thats why we proceeded with them in the first place.

dermot_sheehan

You need to talk to your legal advisors as we can't go through the permission and what was actually built here on a public internet forum.

Suffice to say that whether something is in compliance with the planning permission is objectively a matter of law and while the local planning authority may be of the view it is in compliance with the permission granted, it is ultimately for a court to determine. The best the planning authority could do in such circumstances is grant retention permission if a court finds the structure was not authorised by the original permission.

Bullseye1

I would seek a pre planning meeting with the planning department with a view to seeking retention permission. It sound like the planning authority would not have a problem in granting retention. Even if it went to An Bord Pleanala it's likely to be rubber stamped by them. This way your in control and not your neighbour. God help you having to live next to someone like that.

Victor

I think Kenny .v. Dublin City Council (Trinity Hall, Dartry), Unreported, High Court, 8 September, 2004.

It may have been appealed to the supreme court.

http://www.emigrant.ie/index.php?option=com_content&task=view&id=10154

http://www.google.ie/#hl=en&safe=off&biw=800&bih=375&q=%2Bkenny+%22dublin+city%22+trinity+hall+dartry+&aq=f&aqi=&aql=f&oq=&fp=6b3b2ba65426457b

nuac

Yes, the neighbour can make a Section 160 PDA 2000 application.

Usually local authorities are not required to give an undertaking as to damages when making these applications, but a private applicant is likely to have to give such an undertaking. Could prove expensive.

If there are breaches, the developer should apply to retain. The Court does not have to adjourn until the retention application is decides, but most Circuit Court judges would so adjourn.

Further granting of such injunctions is at the discretion of the Court. If the judge sees that this is part of an ongoing dispute rather than an application on planning grounds (s)he might strike out, or at least refuse costs.