Planning Conditions Expire After 5 Years

ddubs

I've been dealing with a local authority on behalf of an issue my parents have been having.

The council have written to me saying they cannot issue an enforcement order after 5 years of Grant of planning.

Basically a neighbouring business of my parents house changed hands in recent years and have gone against a number of conditions in the original (mid 90's) planning permission for the development. They are breaching non developmental conditions such as hours of operation and storage of materials. While the planning office acknowledge that it is against the original Grant the enforcement section say they are statue barred from initiating enforcement proceedings, they have quoted the relevant Local Government Act.

If this is the case surely this is a massive weakness in our planning legislation and open to massive abuse? What is the point of conditions.

I'd appreciate any help/advise/experience any of you might have. I'm a qualified engineer and work regularly on planning and this just seems like a nonsense rule?

Cheers

D

Gumbo

I think there's a mistake here. It's 7 years before they can be statue barred, but the site will always be in non compliance.

Also, if the development starts, I'm nearly sure they have 12 years from the start date of the planning.

Poor Uncle Tom

kceire wrote: »

I think there's a mistake here. It's 7 years before they can be statue barred, but the site will always be in non compliance.

Also, if the development starts, I'm nearly sure they have 12 years from the start date of the planning.

That's right, 5 years doesn't come into this equation.

As I see it there are two dates of any relevance here,
1. 12 years and 108 days from the date of grant of planning permission to chase enforcement of non compliance with a condition or conditions of a planning permission.
2. 7 years and 63 days from the start date of an unauthorised development to chase enforcement of non compliance of that unauthorised development.

So the first question here is when did the breaches in the planning conditions (the unauthorised developments) first occur? If it was recently action can be taken, if it is outside the dates to take action, why is it only now becoming a problem?

ddubs

Poor Uncle Tom wrote: »

That's right, 5 years doesn't come into this equation.

As I see it there are two dates of any relevance here,
1. 12 years and 108 days from the date of grant of planning permission to chase enforcement of non compliance with a condition or conditions of a planning permission.
2. 7 years and 63 days from the start date of an unauthorised development to chase enforcement of non compliance of that unauthorised development.

So the first question here is when did the breaches in the planning conditions (the unauthorised developments) first occur? If it was recently action can be taken, if it is outside the dates to take action, why is it only now becoming a problem?

The legislation she quoted was the Local Goverment Act 1963

36.—(1) If the planning authority decide that any structure should be removed or altered, the planning authority may serve a notice, requiring the carrying out of such removal or alteration and, in the case of a removal, any replacement appearing to the planning authority to be suitable, on the owner and on the occupier of the structure and on any other person who in their opinion will be affected by the notice.

(2) Subsection (1) of this section shall not apply in relation to an unauthorised structure unless—

(a) it is a structure which existed immediately before the appointed day and was on the commencement of that day an unauthorised structure and the notice under this section is served after the expiration of five years from the appointed day, or

(b) it is a structure constructed, erected or made on or after the appointed day and the notice under this section is served after the expiration of five years from its having been constructed, erected or made.

Poor Uncle Tom

ddubs wrote: »

The legislation she quoted was the Local Goverment Act 1963

36.—(1) If the planning authority decide that any structure should be removed or altered, the planning authority may serve a notice, requiring the carrying out of such removal or alteration and, in the case of a removal, any replacement appearing to the planning authority to be suitable, on the owner and on the occupier of the structure and on any other person who in their opinion will be affected by the notice.

(2) Subsection (1) of this section shall not apply in relation to an unauthorised structure unless—

(a) it is a structure which existed immediately before the appointed day and was on the commencement of that day an unauthorised structure and the notice under this section is served after the expiration of five years from the appointed day, or

(b) it is a structure constructed, erected or made on or after the appointed day and the notice under this section is served after the expiration of five years from its having been constructed, erected or made.

And that was amended under the Planning and Development Act, 2000.

http://www.irishstatutebook.ie/pdf/2000/en.act.2000.0030.pdf

from part 8, section 151 (page 161) of the attachment refers.

Regarding the timelines for prosecution of offences, part 8, section 157(4)(a)(i) and (ii) (page 167) of the attachment refer.

These periods of, 7 years and 7 years after the date of a planning permission (7 + 5 = 12 years) where that applies, respectfully, were further extended after a 2009 High Court Case (Browne v Kerry Co Co) where it was held that a 9 day period could effectively be added to each year for loss of time due to holidays. Therefore the 7 years became 7 years and 63 days and the 12 years became 12 years and 108 days.

This has been the case since 2009.

I believe you need to engage a good local Agent (Architectural Technologist, Architect, Engineer, etc.) who knows the Planning and Development Act a bit better than the person giving you the information you quoted above.

ddubs

Folks thanks for all your input I really appreciate it.

So if I understand given that the original planning was granted in 1998 by any measure you've described in the above posts planning conditions can no longer be enforced.

Where this confuses me is that say for example, a large business or industry has a restriction in their operating hours; or say a wind farm or other such development is imposed noise limits, requirements for environmental controls or say annual nature surveys for the lifetime of the development. By reading the above legislation such a business could stop these often costly requirements after 12 years and the local authority would have no recourse or means to enforce them?

It seems daft. I mean I think the legislation is clear and fair for what I would term 'developmental conditions' but not for softer more long term requirements which are intended to survive the life of the development.

Poor Uncle Tom

ddubs wrote: »

So if I understand given that the original planning was granted in 1998 by any measure you've described in the above posts planning conditions can no longer be enforced.

Where this confuses me is that say for example, a large business or industry has a restriction in their operating hours; or say a wind farm or other such development is imposed noise limits, requirements for environmental controls or say annual nature surveys for the lifetime of the development. By reading the above legislation such a business could stop these often costly requirements after 12 years and the local authority would have no recourse or means to enforce them?

No, that is not the case, you really need to speak to somebody who will help you with your specific case.

ddubs wrote: »

It seems daft. I mean I think the legislation is clear and fair for what I would term 'developmental conditions' but not for softer more long term requirements which are intended to survive the life of the development.

I couldn't possibly comment without further information.

ddubs wrote: »

I've been dealing with a local authority on behalf of an issue my parents have been having.

If this is actually the case, you need to get some advice specific to your situation.

Victor

ddubs wrote: »

Where this confuses me is that say for example, a large business or industry has a restriction in their operating hours; or say a wind farm or other such development is imposed noise limits, requirements for environmental controls or say annual nature surveys for the lifetime of the development. By reading the above legislation such a business could stop these often costly requirements after 12 years and the local authority would have no recourse or means to enforce them?

As I understand it, conditions are permanent (unless specifically time-limited in the planning permission).

If the occupier makes a change that would otherwise need planning permission and nobody objects and the council doesn't enforce, then that's what those time limits apply to.

moleyv

If they have been using different opening hours and area for storage of materials for more than seven years then it is statute barred.

This is because these two items can be considered a new development that would have required permission. As no action was taken from seven years from when these new developments took place, no action can be taken.

The seven years is from when they first stored materials in the other spot and used the unauthorised opening hours.

Just because they are statute barred, does not mean they are authorised.

If they seek permission on site, and the unauthorised items would facilitate what permission is being sought for, they will be refused permission, or afforded the opportunity to get things regularised.