Status of Land Taken in Charge

kippy

Hi All,

A friend of mine and myself were having a discussion about the amount of estates not taken in charge around the place and the implications of not being taken in charge by the LA.

One of be 'benefits' I believe of not being taken in charge is that the management company have ownership of the common areas and were it the case that a developer wished to develop a private field beside the estate but required IW to provide services across the common area the management company would be in a position not to authorise this if they so wished.

Once the estate is taken in charge by the LA, IW can request authorisation to provide services by digging up and reinstating the common area thereby bypassing the management company.

Is this correct or are we missing something?

If the above is correct is there any reason to maintain a management company within the estate assuming there are no apartments/lifts shared buildings etc.

Thanks for any guidance.

Mellor

https://www.boards.ie/discussion/2058323644/status-of-land-taken-in-charge

That's broadly correct, a private common property remain private. But there are probably situations where court orders could apply.

If the CP is handed over to the council, the management company loses that control, at the benefit of reduced running costs.

Peregrinus

Even if there are no lifts, common spaces in buildings, etc, there are still roads and services (street lighting, utility conduits, etc) all of which remain the responsibility of the management company. This isn't limited to costs which would fall on the local authority - Irish Water, for example, has no responsibility for water infrastructure in an estate not taken in charge, so if a water main or a sewage main is damaged or simply wears out and has to be replaced, the costs of that fall on the management company. The same goes for public lighting, electricity infrastructure and other utility infrastructure.

As the estate is new, all this infrastructure is new and for some years (assuming it has been properly constructed in the first place, which of course isn't invariably the case) the costs of operating/maintaining it are likely to remain low. But as time marches on these costs rise, and then they are overtaken by renewal costs - road have to be resurfaced or even upgraded at some point, water or sewage mains replaced, etc. It gets very expensive.

It's conceivable that the homeowners who control the management company may be willing to bear these large and rising costs in order to have some chance of frustrating the development of neighbouring land but, even if they are, its' a very uncertain trade-off. In the example given in the OP, routing th water supply for the new development through the common areas of the existing development may be the cheapest or preferred option, but that doesn't mean it will be the only one. So homeowners might bear all these costs and then find that the new development happens anyway.

kippy

Thanks.

Assuming Irish Water take in charge the pipes/sewers etc and the LA take in charge the common areas, roads, footpaths,street lighting etc as well as responsibility for Public Liability insurance - what is the benefit to the owners of maintaining a management company - with all of the bills and administration that go with it.

The estate is made up of completely detached houses.

Secondly, can the LA approve access to third parties (IW in this instance) to lay pipe across common areas or indeed to install footpaths across common areas? I think this has been answered already but taking it to the extreme can the LA approve additional building on the common areas if they can do either of the previous actions?

Thanks again for the comprehensive replies so far.

Mellor

https://www.boards.ie/discussion/comment/121399602#Comment_121399602

The benefit on the OMC would be to manage any common property that still exists.

If the property is signed over to the council, it is essentially no longer is no common property. But the council would only control that which is signed over to them. If the council take the paths, roads, services in charge, that does not give them power over other common property that the OMC retain.

Eg the OMC might retain green area, gardens, parking area. In which the council would not have control to make decision over them. But the the OMC would have to pay to maintain them as the council wouldn't

kippy

https://www.boards.ie/discussion/comment/121399948#Comment_121399948

Thanks Mellor.

Lets assume all of the green area, shared spaces etc have been taken in charge. The council have said they will not cut the grass.

In this instance it appears as if a very informal residents committee manage cutting of grass to reduce the paperwork/regulatory requirements that an OMC brings.

Perhaps I am reading it wrong.

Assuming all of the above - can the council decide to build structures/paths on the common areas once they have it in charge?

muffler

If you can get your hands on the documents submitted as part of the planning application for the estate you should see the green areas being designated as communal open space and the grant of permission should state that the area is to maintained by the developer. Any proposals to develop the open space for housing would result in a contravention of the original planning permission and therefore would not be permitted

yurtyaherne

When a local authority proposes to take an estate in charge, a taking in charge map is put on display for submissions or observations. The map will delineate exactly what the council will have responsibility. In most instances, it's the roads and services only.

Here's an example that Google threw up for me. You'll see in the PDF document linked at the bottom the exact areas to be taken in charge. https://www.tipperarycoco.ie/roads-and-transport/roads-and-transport/roads-and-transport-latest-news/2023/taking-charge-1.

Once the council has estate taken in charge, they can add footpaths, speed bumps, signage, pedestrian crossing etc. They will not be able to add any additional structures or houses if the public open area remaining after the erection of such structures would reduce the public open area to a lower quantity than that stipulated in the current development plan for that authority

Mellor

https://www.boards.ie/discussion/comment/121400553#Comment_121400553

I'm not sure if I follow what you area asking. The council have no say in common property.

• Common areas. Owned collectively my all owners. Managed by OMC.
• Areas handed to the council. Becomes public land. Managed by the council.

If the OMC hands over property to the council, they are no longer common property. The OMC essentially cedes ownership. Eg a road given to the council is now a public road, it is no longer OMC common property. The delineation of what is handed to the council should be made clear, it is a legal transaction.

Mellor

https://www.boards.ie/discussion/comment/121401120#Comment_121401120

The developers obligation to maintain would ceases when the developer exits the OMC. From that point the OMC owns it outright and are responsible.

OP is asking if subsequently if that open space as handed to the council, could the council could build on it. Any conditions on the area in the original application, could technically be changed by the council.

As a very simple example, If a green area as given to the council, they could easily added a footpath not on the original plans

Peregrinus

https://www.boards.ie/discussion/comment/121403150#Comment_121403150

I could be wrong here, but my understanding is that there is a distinction between the local authority taking land in charge, and the local authority acquiring land.

If the council takes a road in charge, they don't own the strip of land in question; it still belongs who whoever owned it before it was taken in charge. The council have a bunch of rights and obligations in relation to the land, basically associated with maintaining it as a public road, and the owner's interests are correspondingly limited. Even leaving the issue of planning aside the owner can't, say, put up a house in the middle of the road that he owns, because his rights as owner are limited by the fact that it's a public road. But equally the council can't put up a house in the middle of the road because it's not their land, and their rights/obligations/control in relation to the road are all to do with maintaining it as a road.

It may be that current practice is that, when the council takes a new road in charge, they also take a transfer of the land in question, so that they do become the owner. I can see why that would appeal to developers. But it certainly wasn't the case in the past, and there are many roads in charge of local authorities that do not belong to the local authority and are not publicly-owned.

muffler

Mellor Im not going to argue or labour the point as you have an awful habit of nit picking every point raised and always rely on "technically" this, that and the other when you know fine well you are talking hypothetically. Id rather stick to facts.

Mellor

https://www.boards.ie/discussion/comment/121403214#Comment_121403214

I'm also sticking to the facts, really not sure what you are getting at. The part in bold is simply incorrect.

designated as communal open space and the grant of permission should state that the area is to maintained by the developer

Planning conditions apply to the property, not the applicant. Once the developer hands ownership to the OMC (and exits the OMC), the obligation to maintain lies with the OMC, ie the owner of the private property.

Mellor

https://www.boards.ie/discussion/comment/121403207#Comment_121403207

I was being simplistic, rather that referring who the owner on paper is technically. The essential point being when the LA takes in charge a private road, the that road is declared, by law, a public road with a public right of way, to be maintained by the relevant authority. But you are correct, they do not go to the extent of becoming the legal owner, and legally they do not need to while it's a public road.

But equally the council can't put up a house in the middle of the road because it's not their land, and their rights/obligations/control in relation to the road are all to do with maintaining it as a road.

Not quite. They cannot put up a house in the middle of a road because it is a road, not because it's not their land (not owning land doesn't prevent you applying for planning permission or building anything).

However if you were dealing with a modification that was appropriate for a roadway, such as adding a footpath, speedbump, traffic lights, islands/median strips, etc. Then the LA are entirely able to do those without consulting the original owner. Inversely the original owner can do none of those things. anyone else who wants to erect signs or interfere with the road needs the legal permission of the LA, not the original owner.

The LA is functionally the "owner", albeit not de jure. But it is an important distinction you made. A authority can abandon a road, presumable it would revert to the title holder.

Peregrinus

I think the owner of the land does retain some rights, and therefore some control, although you'd need a fairly improbable set of facts before this would be of any practical significance. But if you are the owner of land which has been dedicated as a public road, the public's rights over the land only extend to using it as a road, and the council's rights/responsibility are similarly limited. If somebody enters on the land for some other purpose that is inconsistent with your rights/interest in the land they are trespassing, and they are trespassing against you rather than against the council.

So, for example, if I'm using the road as a dumping-place for the waste from my fish processing plant and glue factory, if you fail to persuade the council to take any action to stop me I think you yourself could take action in trespass both to stop me and to recover damages. The householder on the other side of the road who, let's say, doesn't own any part of the road would have to frame their action in nuisance.

Or, let's suppose, a valuable mineral seam is discovered running under the road. Whatever mineral rights the landowner has (and, in Ireland, that may not b very much) are yours, not the council's.

kippy

Thanks for the comprehensive responses.

I suppose I am still (no fault of yer own, I can be a tad slow) not fully sure of a couple of facts.

Lets make this a bit more specific.

-The common area (A green space) has been taken in charge by the Council. What rights do the council have with respect to:

A. Building a structure on that common area.

B. Allowing a company such as Irish Water to lay pipes across the common area.

-Bearing in mind the above, if the council are now the legal owners of the common area (which I am still unclear on) what is the benefit of maintaining a management company of an estate with no apartments, complext issues, and a residents committee that maintain grass etc and all that goes with that?

yurtyaherne

https://www.boards.ie/discussion/comment/121403551#Comment_121403551

A. The council can erect structures if erection of such structures would not reduce the public open area to a lower quantity than that stipulated in the current development plan for that authority. In each county development plan, it will stipulate the minimum percentage of public open space that must be in a housing development. Say for example estate A was built in 2000 and 10% was required as public open space at the time. If the required public open space is now 8%, they can only build over the difference (2%). Unless its a substantial area, I couldn't see the local authority want to build on it.

I have personally seen instances where a person living within the estate wishes to build an extension to the side of their house to accommodate a downstairs bathroom for medical purposes, they might be unable to build to the rear and there may be public open area to the side of the house. The council may transfer them a portion of this land to facilitate the erection of an extension..

B. Irish Water can lay pipes across the common areas provided that they have been taken-in-charge by the local authority. In most instances they would obtain a road opening licence, which would also cover the green areas etc. (if in-charge). There would be stipulations in the licence regarding working hours, reinstatement etc.

yurtyaherne

You should also bear in mind that for a local authority to take an estate in charge, an application must be submitted by the developer or 51% of homeowners (not tenants) within the estate itself.

Mellor

https://www.boards.ie/discussion/comment/121403551#Comment_121403551

The benefit of a OMC in that situation would be to look after any other common property not taken in charge, cutting the grass etc. People can opt out of a residences association, but not an OMC.

kippy

https://www.boards.ie/discussion/comment/121404342#Comment_121404342

Ok, thanks again to all for the comments.

On this point - suppose all common areas have been taken in charge at this point. Theres been a residents committee in play since the estate was built that collects a small fee and arranges grass cutting. The Council have said they will not cut the grass on the common areas.

Is there any point in maintaining a management company together with the directors insurance, accounts filing (despite zero movement) and costs that this bring to the residents when it looks as if the OMC has nothing to do with the land taken in charge any more and were never that active in the first instance.

The residents committee can continue to maintain the grass etc......