Enforcement of planning condition.

loremolis

I've read somewhere that a planning authority cannot include a condition in a grant of planning permission which requires the landowner to simply hand over a portion of their land to the planning authority free of charge.

Is this the case, or can a planning authority enforce such a condition?

Bullseye1

If the planning authority requires land from a land owner it should be conducted through a compulsory purchase order. They require landowners to set back boundaries in order to provide adequate sight lines for new entrances but I've never heard of them acquiring land through conditions of planning.

sydthebeat

loremolis wrote: »

I've read somewhere that a planning authority cannot include a condition in a grant of planning permission which requires the landowner to simply hand over a portion of their land to the planning authority free of charge.

Is this the case, or can a planning authority enforce such a condition?

dont know of anything off hand, but id be HUGELY surprised if they were allowed.

loremolis

But if it's a condition of a planning permission and the planning authority seeks to enforce it for non-compliance, what is there to stop them doing so?

Does an enforcement hearing consider the merits or validity of the condition or is it simply a matter of whether it was complied with or not?

rayjdav

loremolis wrote: »

But if it's a condition of a planning permission and the planning authority seeks to enforce it for non-compliance, what is there to stop them doing so?

Does an enforcement hearing consider the merits or validity of the condition or is it simply a matter of whether it was complied with or not?

Was the condition not appealed to ABP at the time of the issuing of the grant of permission?
Is this part of a development, whereby the council can accept a % of land/open space, in lieu housing units, as of P&D Act?

sydthebeat

rayjdav wrote: »

Was the condition not appealed to ABP at the time of the issuing of the grant of permission?
Is this part of a development, whereby the council can accept a % of land/open space, in lieu housing units, as of P&D Act?

good question, OP can you be more specific as to what the land swap is?

loremolis

rayjdav wrote: »

Was the condition not appealed to ABP at the time of the issuing of the grant of permission?
Is this part of a development, whereby the council can accept a % of land/open space, in lieu housing units, as of P&D Act?

It's not a part V or a transfer of % of open space issue.
I hadn't intended to go into specifics because I don't want anyone saying that I'm looking for legal advice. I don't want any legal advice and I'm not asking for any, so please don't give me any.

The condition in question relates to the landowner granting a wide wayleave for a pipe running through the land to the planning authority where no wayleave has previously existed. The pipe runs through the land the subject matter of the permission and other adjoining land.

However, my query doesn't really relate to tthe specifics of that.

What I'm asking is, generally speaking, where enforcement of planning conditions goes to court, is the subject matter of the condition relevant to the court or is it simply a matter of the court deciding whether the condition has been complied with or not no matter how off the wall the condition might be?

In other word, does the court examine the right or wrong of the condition or will it be enforced no matter what?

sydthebeat

your query is misplaced.

the granting of a way leave has nothing to do with anyone "handing over land".

you second query is also misplaced.
an enforcement action will not go to court of there is a query over whether a condition has been complied with or not. It will only go to court when its clear that the condition has not been complied with nor any effort has been made to comply. the usual schedule of event after an enforcement notice is either and application to retain unauthorized works, or a planning application to carry out offending non compliance.

No, the court will not examine whether the 'right or wrong' of the condition. The place and time for that is after the planing decision by appealing to the bord. Or applying for planning permission for that condition to be removed.

loremolis

sydthebeat wrote: »

your query is misplaced.

the granting of a way leave has nothing to do with anyone "handing over land".

you second query is also misplaced.
an enforcement action will not go to court of there is a query over whether a condition has been complied with or not. It will only go to court when its clear that the condition has not been complied with nor any effort has been made to comply. the usual schedule of event after an enforcement notice is either and application to retain unauthorized works, or a planning application to carry out offending non compliance.

No, the court will not examine whether the 'right or wrong' of the condition. The place and time for that is after the planing decision by appealing to the bord. Or applying for planning permission for that condition to be removed.

Sorry. In my mind "handing over land" was the best way of putting it. Handing over a wayleave is handing over rights over the land.

In response to your point, a condition requiring that the landowner provide a wayleave for a pipe doesn't fall into the category of works and non-compliance with the condition cannot be remedied by the carrying out of works, by making a retention application for the unauthorised development or by making a fresh planning application.

For the sake of my argument let me make a ridiculous example.

A planning permission is granted which contains a condition that the landowner must provide the local authority with 50% of the profits he makes from the permitted development and he must provide them with a contract that says he will do so prior to commencing the development.

It's clearly a ridiculous condition and the landowner doesn't bother to appeal it or judicially review it because it doesn't materially affect the permittied development i.e. it's not a technical constraint or a vital piece of infrastructure required for the development.

If your view is correct (and I don't doubt that strictly speaking it probably is) then, if the landowner doesn't appeal the 50% profit condition and then seeks to implement the permission, the planning authority would be able to enforce the condition and take 50% of the profit even though it's clearly (IMO) beyond the scope of the planning authority to impose or enforce?

archtech

loremolis wrote: »

For the sake of my argument let me make a ridiculous example.

A planning permission is granted which contains a condition that the landowner must provide the local authority with 50% of the profits he makes from the permitted development and he must provide them with a contract that says he will do so prior to commencing the development.

It's clearly a ridiculous condition and the landowner doesn't bother to appeal it or judicially review it because it doesn't materially affect the permittied development i.e. it's not a technical constraint or a vital piece of infrastructure required for the development.

If your view is correct (and I don't doubt that strictly speaking it probably is) then, if the landowner doesn't appeal the 50% profit condition and then seeks to implement the permission, the planning authority would be able to enforce the condition and take 50% of the profit even though it's clearly (IMO) beyond the scope of the planning authority to impose or enforce?

Planning permission and the conditions associated with a grant of permission is legal status. Unless one successfully appeals a condition or seeks a judicial review the condition stands and needs to be complied with to avoid an unauthorised development no matter what the condition is . Unfortunately many people when they get their planning permission don't review the conditions properly until it's too late. As for the example you gave the developer would have appealed the condition and risk loosing the planning if he was not happy with the condition. The reason for An Board Pleanala is to all individuals whom are not satisfied with planning conditions have the decision reviewed by a third party. I have to say I wouldn't consider your condition unusual and have come across it in the past.

sydthebeat

loremolis wrote: »

.......... a condition requiring that the landowner provide a wayleave for a pipe doesn't fall into the category of works and non-compliance with the condition cannot be remedied by the carrying out of works, by making a retention application for the unauthorised development or by making a fresh planning application.

the 'carrying out of works' in this case would be granting the way leave.

however if the planning permission has been completed without all the conditions being complied with it is essentially unauthorised.

the granting of a way leave is not at all unusual, i cant see what your issue is.

loremolis

sydthebeat wrote: »

the 'carrying out of works' in this case would be granting the way leave.

however if the planning permission has been completed without all the conditions being complied with it is essentially unauthorised.

the granting of a way leave is not at all unusual, i cant see what your issue is.

How can signing a piece of paper be equated to carrying out works?

The pipe is already there but rather than compulsorily acquire a wayleave(easement) for it they've attached a condition to the planning permission requiring the landowner to give a wayleave free to the local authority free of charge.

It's a great trick but it can't be enforced in much the same way as the imposition requiring the transfer of land is ultra vires.
Doesn't the definition of land include rights over the land?

sydthebeat

loremolis wrote: »

How can signing a piece of paper be equated to carrying out works?

The pipe is already there but rather than compulsorily acquire a wayleave(easement) for it they've attached a condition to the planning permission requiring the landowner to give a wayleave free to the local authority free of charge.

It's a great trick but it can't be enforced in much the same way as the imposition requiring the transfer of land is ultra vires.
Doesn't the definition of land include rights over the land?

Work is any energy expended. but that's a moot argument in this case.

At the end of the day permission was granted subject to conditions. If these conditions are not complied with the resultant works are unauthorised and subject to enforcement action.

The council are within their rights to acquire a way leave over a pipe that at some point may become taken in charge. They require this way leave in order to carry out any necessary works on the pipe.
It needs to be understood that in all probability the permission would not have been given without this condition, thus non compliance is a serious issue.

This condition can, does and will be enforced. By not appealing the condition and by commencing the work the conditions are implicitly accepted and therefore noncompliance becomes a legal matter. If you read you final planning documentation you could see this.

It is not up to the council to enforce a condition. It is up to the applicant to comply with all conditions. Non compliance becomes an enforcement issue.

Again, as has been said previously, this is not an uncommon situation.

loremolis

sydthebeat wrote: »

Work is any energy expended. but that's a moot argument in this case.

At the end of the day permission was granted subject to conditions. If these conditions are not complied with the resultant works are unauthorised and subject to enforcement action.

The council are within their rights to acquire a way leave over a pipe that at some point may become taken in charge. They require this way leave in order to carry out any necessary works on the pipe.
It needs to be understood that in all probability the permission would not have been given without this condition, thus non compliance is a serious issue.

This condition can, does and will be enforced. By not appealing the condition and by commencing the work the conditions are implicitly accepted and therefore noncompliance becomes a legal matter. If you read you final planning documentation you could see this.

It is not up to the council to enforce a condition. It is up to the applicant to comply with all conditions. Non compliance becomes an enforcement issue.

Again, as has been said previously, this is not an uncommon situation.

Thanks, I appreciate the clarity.