Planning permission on land you don't own

v638sg7k1a92bx

Has anyone ever come across this before. An application for planning permission has been approved by DCC and upheld by An Bord Pleanala which includes land that isn't owned by the applicant. Some of the land they have included in their application belongs to a neighbour for which they have a folio number.

As one of the objectors to the application, this issue at both local level and with ABP and in both instances they appear to have ignored the facts and appear to be of the opinion that ownership is a legal issue and not a planning issue.

Has anyone ever come across this before???

Metric Tensor

It's common place for planning authorities to look for proof that the applicant has some legal interest in the property:

However, I don't think there is any legal requirement as the permission is essentially to build a certain type of structure on the site and the owner shouldn't matter. (N.B. The water in this area is tremendously muddied by the rural linkage and annurement clauses that are so common nowadays.)

So ... if planning permission is in place - it doesn't mean that someone who doesn't own the land can just build on it - as the actual owner could obtain an injunction to prevent them.

Metric Tensor

I would question though ... do you believe you are the owner of the portion of land in dispute?

If you aren't - it is hardly your job to police that particular aspect of the planning and you should concentrate your objections on the reason(s) why you think the development is contrary to good planning.

Did you post here before?

Angry bird

Courts adjudicate ownership disputes, not planning authorities. The person who has the legal interest is the person to take the matter to the court, assuming they can actually demonstrate this.

v638sg7k1a92bx

Metric Tensor wrote: »

I would question though ... do you believe you are the owner of the portion of land in dispute?

If you aren't - it is hardly your job to police that particular aspect of the planning and you should concentrate your objections on the reason(s) why you think the development is contrary to good planning.

Did you post here before?

Not the owner but am adversely impacted by the proposed development which would be materially different if the applicant didn't include the land which they don't own as the size of the site would be significantly smaller.

Angry bird

Section 5.13 of the Development Management Guidelines state:

5.13 Issues relating to title to land
Under the Planning Regulations as amended, a planning applicant who is not
the legal owner of the land or structure in question must submit a letter of
consent from the owner in order to make the planning application. Where an
applicant is not the owner and does not submit such a letter of consent, the
application must be invalidated.

The planning system is not designed as a mechanism for resolving disputes
about title to land or premises or rights over land; these are ultimately matters
for resolution in the Courts. In this regard, it should be noted that, as section
34(13) of the Planning Act states, a person is not be entitled solely by reason
of a permission to carry out any development. Where appropriate, an
advisory note to this effect should be added at the end of the planning
decision. Accordingly, where in making an application, a person asserts that
he/she is the owner of the land or structure in question, and there is nothing to
cast doubt on the bona fides of that assertion, the planning authority is not
required to inquire further into the matter. If, however, the terms of the
application itself, or a submission made by a third party, or information which
may otherwise reach the authority, raise doubts as to the sufficiency of the
legal interest, further information may have to be sought under Article 33 of
the Regulations. Only where it is clear from the response that the applicant
does not have sufficient legal interest should permission be refused on that basis.

If notwithstanding the further information, some doubt still remains, the
planning authority may decide to grant permission. However such a grant of
permission is subject to the provisions of section 34(13) of the Act, referred to
above. In other words the developer must be certain under civil law that
he/she has all rights in the land to execute the grant of permission.
Before a planning application can be made in respect of proposed
development on land owned by the local authority, the local authority will have
to give a letter of consent to the making of the application: in this regard a
letter from the Manager will suffice. The consent of the elected members will
of course be required for the disposal (whether by means of lease, licence, or
sale) of the land in question: the developer should be advised of this in
advance.

http://www.housing.gov.ie/sites/default/files/migrated-files/en/Publications/DevelopmentandHousing/Planning/FileDownLoad%2C14467%2Cen.pdf

GerardKeating

Oliver Narrow Dean wrote: »

Has anyone ever come across this before. An application for planning permission has been approved by DCC and upheld by An Bord Pleanala which includes land that isn't owned by the applicant. Some of the land they have included in their application belongs to a neighbour for which they have a folio number.

As one of the objectors to the application, this issue at both local level and with ABP and in both instances they appear to have ignored the facts and appear to be of the opinion that ownership is a legal issue and not a planning issue.

Has anyone ever come across this before???

It is not totally uncommon to see sites sold "subject to planning permission", perhaps the applicant has an agreement with the owner to purchase the site once planning is approved.

Mellor

There's no requirement to own the land upon which you are applying for permission. They are many situations were it's perfectly normal to apply on land you don't own.
Even if there is a legal dispute over ownership, that's a legal matter not a planning matter.

Oliver Narrow Dean wrote: »

Not the owner but am adversely impacted by the proposed development which would be materially different if the applicant didn't include the land which they don't own as the size of the site would be significantly smaller.

How do you know they aren't planning on buying the land if the planning permission is successful?

If you issue is the size and scale of the development, then object to the size and scale of it. Trying to make it about ownership is turning it into a spurious objection that should be dismissed straight away.

QuestionHere

Mellor wrote: »

There's no requirement to own the land up on which you are applying for permission. They are many situations were it's perfectly normal to apply on land you don't own.
Even if there is a legal dispute over ownership, that's a legal matter not a planning matter.


How do you know they aren't planning on buying the land if the planning permission is successful?

If you issuer is the size and scale of the development, then object to the size and scale of it. Trying to make it about ownership is turning it into a spurious object that should be dismissed straight away.

I find it difficult to take this seriously.

Mellor

QuestionHere wrote: »

I find it difficult to take this seriously.

Which part do you think I wasn't serious about?

Penn

QuestionHere wrote: »

I find it difficult to take this seriously.

He's absolutely right though. You can apply for planning permission on land you don't own, provided you provide a letter of consent from the landowner. It's how many sites are bought and sold, because the person buying it may not want to buy it if they can't get planning permission for what they want to build on it, whether it's a rural house which requires prof of local needs, or a site for development. The site won't actually be sold until planning is granted.

If the OP has an issue about how the proposed development will affect him/his property, those are the grounds on which he should appeal and will be given far more weight than the ownership of the site which a) may already have been sorted out by selling subject to grant of planning, and b) if the applicant doesn't own the site and hasn't agreed anything with the owner (which is unlikely), they can't build it until that's sorted out anyway.

Gaillimh1976

We applied for planning (successfully) on a site we did not own

Sent a letter from the owner confirming he intended to sell us the site if planning granted, as part of the application

mickdw

Assuming that no such permission from owner was supplied and the applicant is just stating that they have an Interest in the land, should the application have been invalidated?
If a letter of permission from owner was supplied, well this thread is just nuts.

Penn

mickdw wrote: »

Assuming that no such permission from owner was supplied and the applicant is just stating that they have an Interest in the land, should the application have been invalidated?
If a letter of permission from owner was supplied, well this thread is just nuts.

Yes, the application would have been invalidated.

OP says it was Dublin City Council, and from their Planning Application Form (and similar is on other councils' application forms):

If applicant is not the owner, state name and address of owner and include documentary evidence of consent of the owner to make the application.

Metric Tensor

The OP is vague enough:

1. Is it possible the land in question is in dispute? If so it's not the planners job to arbitrate said dispute.

2. Is it possible that the land in question is not in dispute and the folios are vague or incorrect. Does the person the OP considers to own the land in question consider themselves to own it?

3. Is it a splitting hairs type of issue where a 500mm wide strip or parcel of land is in question?

What is the area of the portion of land in question OP and what does the "owner" say about it?

v638sg7k1a92bx

Metric Tensor wrote: »

The OP is vague enough:

1. Is it possible the land in question is in dispute? If so it's not the planners job to arbitrate said dispute.

2. Is it possible that the land in question is not in dispute and the folios are vague or incorrect. Does the person the OP considers to own the land in question consider themselves to own it?

3. Is it a splitting hairs type of issue where a 500mm wide strip or parcel of land is in question?

What is the area of the portion of land in question OP and what does the "owner" say about it?

The owner of the land does have a folio, the size of which is circa 150sqm. Problem is that the owner of the land missed the original notice for DCC and submitted an observation on my appeal to ABP who decided not to address the ownership issue in their decision as they consider it an issue for DCC.

Gumbo

Penn wrote: »

Yes, the application would have been invalidated.

OP says it was Dublin City Council, and from their Planning Application Form (and similar is on other councils' application forms):

But the problem lies where the applicant states on the form that he does own the land. The LA cannot invalidate them as it's a civil matter.

Plenty of real life examples of this in Dublin City over the years.

Gumbo

Oliver Narrow Dean wrote: »

The owner of the land does have a folio, the size of which is circa 150sqm. Problem is that the owner of the land missed the original notice for DCC and submitted an observation on my appeal to ABP who decided not to address the ownership issue in their decision as they consider it an issue for DCC.

An adjoining owner does not have to object to the LA. They can appeal to ABP even without a previous onbjection as they are immediate land owners.

Even ABP will not address civil issues, I was involved in one recently with a friend and it's a matter for the land owners and courts to agree on.

Metric Tensor

OP - would any of the proposed development be on this 150 sq m or is that area merely contributing to the site?

If there is to be development on that area the the owner of the 150sq m would probably be able to halt the development legally.

If however the area was shown as part of the planning site but no actual construction will take place on it - then the situation is very questionable indeed!!! I don't know what one could do.

mickdw

Looks like it would be something like that where the area was included as green area or something.
Surely if development did go ahead, the owner of the disputed land could report none compliance with planning as soon as commencement would be submitted as there would be no possible way to comply without the land owner. This adjoined owner could yet be in a very strong position

v638sg7k1a92bx

Metric Tensor wrote: »

OP - would any of the proposed development be on this 150 sq m or is that area merely contributing to the site?

If there is to be development on that area the the owner of the 150sq m would probably be able to halt the development legally.

If however the area was shown as part of the planning site but no actual construction will take place on it - then the situation is very questionable indeed!!! I don't know what one could do.

They've documented the land (the one they don't own) as having a right of way. No development on that land but without the right of way they wouldn't be able to include the parking spaces which means they would be submitting an application with no off street parking as to one which does have off street parking.

Metric Tensor

One would imagine the proper owner may be in quite an advantageous position if that is the case.

There is always the possibility that they know something that you don't.

It's not your battle unfortunately!

v638sg7k1a92bx

Metric Tensor wrote: »

One would imagine the proper owner may be in quite an advantageous position if that is the case.

There is always the possibility that they know something that you don't.

It's not your battle unfortunately!

Unfortunately it is as the parking spaces in the rear are adjacent to my back garden. Their land is also on higher ground which means that our back garden will be overlooked by parked cars.

Don't see how the owner would be in an advantageous position?

mickdw

well if the development requires these lands, the developer will have to come to an agreement with the current owner in order to build in a compliant manner.
Basically if you are correct and the developer has no right to access or use these lands, sooner or later they will have to approach land owner with a rather tasty deal.

v638sg7k1a92bx

mickdw wrote: »

well if the development requires these lands, the developer will have to come to an agreement with the current owner in order to build in a compliant manner.
Basically if you are correct and the developer has no right to access or use these lands, sooner or later they will have to approach land owner with a rather tasty deal.

Not necessarily, there is a history of significant non compliance on the site from a planning and development perspective. The concern is that now the planning application is approved at both local and ABP level, the applicant will build whatever they decide. If residential units are completed then it is hard to see a judge executing an enforcement order where there are sitting tenants.

Another approach would be to challenge provisions of s94(4) and s96(2) and 96(3) of the Planning and Development Act with the DCC. One of the conditions in the ABP decision was to enter into an agreement with the local authority and any other person who has an interest in the land.

Mellor

mickdw wrote: »

Assuming that no such permission from owner was supplied and the applicant is just stating that they have an Interest in the land, should the application have been invalidated?

If they applicant states they aren't the owner, then ye it would be invalid.
But if they stated that they were the owner, a right of way, easement, etc. Then that's sufficient for planning and not the council job to adjudicate.

Oliver Narrow Dean wrote: »

The owner of the land does have a folio, the size of which is circa 150sqm. Problem is that the owner of the land missed the original notice for DCC and submitted an observation on my appeal to ABP who decided not to address the ownership issue in their decision as they consider it an issue for DCC.

If the issue is ownership and not the development, then that's a civil matter.
Just because something has planning, that doesn't mean it can/will be built

Oliver Narrow Dean wrote: »

The concern is that now the planning application is approved at both local and ABP level, the applicant will build whatever they decide. If residential units are completed then it is hard to see a judge executing an enforcement order where there are sitting tenants.

Based on what I'm visualising, couldn't the owner physically prevent them from using the right of way. So if they go ahead and build the development, they've just gone and built a number of inaccessible parking spaces. Which will become obvious to any prospective buyers.

mickdw

The OP isnt making much sense. If the other person truly owns the plot and the developer has no right to access or develop that portion, then surely the developer can be ejected from the lands by whatever legal means necessary and no further worries.
If the developer didnt access this plot at all, there is little issue and they are taking a massive risk constructing a development that wont/cant comply.
One way or another, if they have no claim to the land, they cant touch it.
If its a housing development for example, there would be serious issues and a legal minefield for the developer to attempt to get it all developed and sold off with a portion of the development non existent. I simply dont see it happening.

Metric Tensor

Firstly I presume you objected based on those car-parking spots affecting your privacy? This is your concern and the inspector would have examined it as part of their assessment.

Now there's 2 possibilities:

1. The developer actually has a right of way over the portion of land.

2. The developer does not have a right of way - which leads to the following sub-possibilities:
a. They pay the owner a tidy sum to purchase an ROW.
b. They try to build without one and the owner prevents them by legal means.
c. They try to build without one and the owner just lets them.


If 1, 2a or 2c happen then it's going to be built.
If 2b happens the car-parking spaces may be built but won't be accessible/used and the entire development will be non-compliant.


The only options you have is to pursue the planning grant legally - which I suspect you will lose - particularly considering:

One of the conditions in the ABP decision was to enter into an agreement with the local authority and any other person who has an interest in the land.

OR

Talk nicely to the current owner of the 150 sq - bearing in mind that he/she can probably make a tidy profit from their (possibly not very useful) plot of land.
 

Mellor

Oliver Narrow Dean wrote: »

Unfortunately it is as the parking spaces in the rear are adjacent to my back garden. Their land is also on higher ground which means that our back garden will be overlooked by parked cars.

If there a boundary fence proposed?
There's very little overlooking from a car under 1.5m parked on ground level.
If there is no fence proposed, there is nothing stopping you erecting one for your own privacy.

Oliver Narrow Dean wrote: »

Problem is that the owner of the land missed the original notice for DCC and submitted an observation on my appeal to ABP who decided not to address the ownership issue in their decision as they consider it an issue for DCC.

That doesn't actually sound as though its the case tbh.
I appears that the below condition is specifically in relation to the ownership/right of way issue.

Oliver Narrow Dean wrote: »

One of the conditions in the ABP decision was to enter into an agreement with the local authority and any other person who has an interest in the land.

They are basically saying they can build it. But the land owners have to agree to he means of access outline, or they have to agree to an alternative access with the council (such as no parking).

Mellor

mickdw wrote: »

The OP isnt making much sense. If the other person truly owns the plot and the developer has no right to access or develop that portion, then surely the developer can be ejected from the lands by whatever legal means necessary and no further worries.

It sounds like they aren't going to develop the 150m2 in question. They'll develop their own land, but they expect/require the potential buyers to cross the 150m2 in order to use their parking spaces.
At least that's my reading of it.

v638sg7k1a92bx

Mellor wrote: »

It sounds like they aren't going to develop the 150m2 in question. They'll develop their own land, but they expect/require the potential buyers to cross the 150m2 in order to use their parking spaces.
At least that's my reading of it.

Correct.

v638sg7k1a92bx

Mellor wrote: »

Based on what I'm visualising, couldn't the owner physically prevent them from using the right of way. So if they go ahead and build the development, they've just gone and built a number of inaccessible parking spaces. Which will become obvious to any prospective buyers.

Correct but who knows what will happen in the future.

v638sg7k1a92bx

Mellor wrote: »

If there a boundary fence proposed?
There's very little overlooking from a car under 1.5m parked on ground level.
If there is no fence proposed, there is nothing stopping you erecting one for your own privacy.

That doesn't actually sound as though its the case tbh.
I appears that the below condition is specifically in relation to the ownership/right of way issue.

They are basically saying they can build it. But the land owners have to agree to he means of access outline, or they have to agree to an alternative access with the council (such as no parking).

That condition that I was referring too was to do with the Social Housing S96 and S97 provisions not the ownership of the actual land itself.

Mellor

Oliver Narrow Dean wrote: »

That condition that I was referring too was to do with the Social Housing S96 and S97 provisions not the ownership of the actual land itself.

What are the developers current intentions there?

v638sg7k1a92bx

Mellor wrote: »

What are the developers current intentions there?

I think they are applying for an exemption.

v638sg7k1a92bx

Wasn't there a case recently where Wicklow Vocational Educational Commitee (VEC) were refused planning on a plot of land (which they had paid circa €20m for) on the basis that they didn't have a right of way over a small piece of land which they proposed to develop?

Mellor

A case where there's clear lack of a right of way/ownership over a portion of the land developed is grounds for refusal/invalidation.

But where it's unclear. It's not down to the planning authority to determine ownership.
The planning permission is permission from the planning authority only. It in no way implies a grant of the rights required.

As an obvious example, I could apply for a domestic PP for a site you own. The CC grants the permission. I have no way and right to build the home until you sell me the land.

Mellor

A case where there's clear lack of a right of way/ownership over a portion of the land developed is grounds for refusal/invalidation.

But where it's unclear. It's not down to the planning authority to determine ownership.
The planning permission is permission from the planning authority only. It in no way implies a grant of the rights required.

As an obvious example, I could apply for a domestic PP for a site you own. The CC grants the permission. I have no way and right to build the home until you sell me the land.