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Change of Use Warning Letter

lebigmacncheese

Hi,

Back in 2009 I got planning for a detached building containing utility, workshop, toilet, office, storage out the back of my house.

After i moved out of the main house and rented it out, I converted this office space to a self contained house.

I just received a warning letter pursuant to section 152 of the planning and development act 2000 stating 'Non-compliance with condition 3 of planning application xxxxxx and a change of use for shed / store to self contained detached accomodation.

Any advice on how to approach this / what the likely outcome will be would be greatly appreciated.

Thanks.

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muffler

Too many variables involved that it would be impossible to give an opinion other than to say that on face value it would most likely be refused planning if you applied for retention. Get a local architect of architectural technician to have a look.

lebigmacncheese

Thanks for the reply. If they don't give retention what happens then? I just can't rent it out anymore? or could they ask me to change the buildling / contents?

CreadanLady

2 ways of playing this that I can see.

The warning you received probably gives you a timescale. Spin it out to the last day before replying. Then if they issue you a notice, it may give you an option to appeal. Appeal on the last day. In this way you can draw the process out for a long time and get away with it for a while longer.

Apply for retention if you think there is a chance of succes. If you get it great.

If you decide not to apply, or ff you don't get it, then play the game smart. Revert the place to storage workshop. It should take minimal work, just removal of the domestic type furniture or whatever and re-name it as a workshop. Stick an old motorbike into it. Then when you have done enough to placate the council that it is back withing the bounds of the planning consent (even just barely) then re-repurpose it back to an apartment. They can do nothing only re-start the clock and go back to the very begining with having to have received a complaint, issue warning letter, enforcement notice, appeal etc and the whole process spun out to the maximum extent. Basically, you can, quite legally in fact, spoof the system in a game of cat and mouse.

If you can find out what neighbour might have reported you to the council, see if there are any irregularities on their patch that you can report them to the council for. Velux windows, walls, modified finishes etc.

By the way, you have done the work over 7 years ago then there is nothing the council can do about it. They cannot enforce.

Unless they can prove that you did it in the last 7 years, then you could just say, "yeah I did that 8 years ago. Bye" and they can do nothing.

In any case, even if decide to play hard ball, and refuse to engage, the councils are just paper tigers and have no appetite to throw down in court over petty planning squabbles. Look at that fella in meath who got refused planning and went ahead and build a giant fúck off sized McMansion anyway. He basically gave the Council, ABP and the finger and wiped his arse with multiple court orders. He managed to wrangle reprieve after delay after stay from the council and the courts after giving everyone the poor mouth cute hoor plámás. - and he is still sitting pretty in his mansion 15+ years later.

I always say it, but that fella is the perfect example of how, in this country, you can get away with almost any sort of stroke if you have a neck that is thick enough and brazen enough.

Penn

https://www.boards.ie/discussion/comment/119764384#Comment_119764384

They could ask you to carry out whatever changes are required to convert the building back to utility, workshop, toilet, office, storage. Basically to undo the works you had carried out to convert it to a separate house and put it back as it was.

lebigmacncheese

Even if it's been this way longer than 7 years?

muffler

https://www.boards.ie/discussion/comment/119764560#Comment_119764560

In your case it's 12 years as a permission was granted.

lebigmacncheese

What if its greater than 12 years?

muffler

https://www.boards.ie/discussion/comment/119764875#Comment_119764875

Then you have to prove that.

lebigmacncheese

And if i can, does that mean they can't do anything?

Lumen

You need proper legal advice.

https://www.lawsociety.ie/gazette/in-depth/a-brief-history-of-time

muffler

https://www.boards.ie/discussion/comment/119765241#Comment_119765241

Agreed.

CreadanLady

https://www.boards.ie/discussion/comment/119764856#Comment_119764856

Can you direct me to the 12 years in the P&D Acts? I can't find where it comes from....

Or is it that you have the permission for 5 years, and then you have the usual 7 years after that?

Any otherwise, sure the council can ask you to undo the unauthorised work. ASK. At this end of the scale, for a back yard shed conversion, they are very VERY unlikely to go all guns blazing getting a court order compelling you to do it on pain of contempt of court. I could not see it.

I know multiple of instances of councils coming out and giving warnings over what are essentially neighbourly disputes, and cute hoors giving them the run around giving them what they are asking for piece meal on the drip until it gets forgotten about.

Lumen

What happened to "we obey the law in this forum"? 😂

kieran.

Just be careful going the statue barred route. If there is a condition on the permission that stating the building can only be used for a certain use then statue barred never comes in to effect

Section 157 (b)

"Notwithstanding paragraph (a), proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject."

Land is defined in the P & D Act as - “land” includes any structure and any land covered with water (whether inland or coastal)

kieran.

https://www.boards.ie/discussion/comment/119765671#Comment_119765671

Section 157

Furze99

https://www.boards.ie/discussion/comment/119766254#Comment_119766254

It doesn't apply obviously to gaming the planning system.

dathi

https://www.rtb.ie/register-a-tenancy/how-to-register-a-tenancy

don't forget you are now obliged to register your tenancy and hopefully you have declared the rental income to revenue

Mellor

https://www.boards.ie/discussion/2058268123/change-of-use-warning-letter

What did condition 3 state?

Have you just had one tenant throughout?

Mellor

https://www.boards.ie/discussion/comment/119765671#Comment_119765671

That’s pretty bad advice. And incorrect on a few points.

CreadanLady

https://www.boards.ie/discussion/comment/119766317#Comment_119766317

Ah so it is 7 years, but it is 7 years after the expiration of the 5 year term for which planning permission is granted.

I'd be inclined to just drag it out and give them the run around on it. I honestly couldn't see them going the whole hog court order on a back yard shed conversion. It wouldn't be worth their while.

Councils have many legal powers, but very few of them are actively enforced in a large scale way. Dog fouling, fly tipping, rented housing standards. The latter, i think there are vanishingly few prosecutions despite the fact that there are tens of thousands of properties not compliant with the regs on inspection.

If they do indeed decide to go to court with you, then just say you'll do it and go and actually do it and keep them happy just for the sake of keeping out of court.

Lumen

https://www.boards.ie/discussion/comment/119769478#Comment_119769478

It's not 12 years. Read the link I posted above. Here it is again.

https://www.lawsociety.ie/gazette/in-depth/a-brief-history-of-time

muffler

https://www.boards.ie/discussion/comment/119769752#Comment_119769752

As the OP didn't indicate that the permission he got in 2009 wasn't extended or temporary in nature then it's assumed that it was a "standard" permission. Accordingly the time limit for the enforcement proceedings is set at 5 years and 45 days being the lifetime of the permission after the grant date and then 7 years. So in total we are looking at 12 years and 45 days or just for simplicity we can call it 12 years.

Lumen

https://www.boards.ie/discussion/comment/119769964#Comment_119769964

But:

(a) that article I posted says

An additional nine days must be added for each of the five years of the permission, and also for each of the seven years under the seven-year rule. Accordingly, where enforcement action is taken regarding a development for which planning permission has been granted, the statutory limitation period is 12 years and 108 days from the date of the final grant of planning permission.

(b) it also says that changes of use are dealt with differently

It should be noted that section 157(4)(b) provides a specific exemption from any limitation period with respect to any condition in a planning permission concerning the ‘use’ of the land to which the permission is subject. This states that “notwithstanding paragraph (a), proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject”. A similar provision regarding civil matters is contained in section 160(6)(b). Accordingly, there is no limitation period on any enforcement action, civil or criminal, regarding a condition in a planning permission regulating the use of property.

It seems to me (random internet idiot) that this is a change of use issue, and that the date of the supposed change of use is possibly irrelevant.

It also seems to me that if this ever got to court, the judge would be entirely unsympathetic to the reasoning "sure, I moved into this shed immediately after I got planning permission for non-habitable use".

Mellor

https://www.boards.ie/discussion/comment/119769752#Comment_119769752

Sure, there are an additional 108 days. But I think it's normal to call that 12 years for simplicity. People don't say 7 year and 63 day rule.

https://www.boards.ie/discussion/comment/119770003#Comment_119770003

Second part is not about a change of use, but the use or change or such precisely when there is a condition on the grant of permission.

If there was a condition on the grant that OP couldn't live in the annex/office. Then there no limit. But if it was just a straight forward grant. There its 12y108d. Which is why I asked what condition 103 was

Lumen

https://www.boards.ie/discussion/comment/119771125#Comment_119771125

OK. Would there ever be planning permission granted for a shed without it being conditional on non-habitable use?

Gumbo

https://www.boards.ie/discussion/comment/119769478#Comment_119769478

It’s too late now.

Time frame is to when the council become aware of the breach. You can’t drag it out now.

Also, court dates are regular for this type of thing. They will absolutely set a court date once they issue the enforcement notice.

Please not that what you have received is a S152 warning. The Enf Note May issue without further warning.

lebigmacncheese

Condition 3 stated the garage shall be used only for purposes incidental to the enjoyment of the dwelling house as such in the interests of residential amenity

Lumen

https://www.boards.ie/discussion/comment/119771843#Comment_119771843

I'd say you're pretty screwed then.

Mellor

https://www.boards.ie/discussion/comment/119771158#Comment_119771158

Would depend on the application. It sounds like it’s non just a basic shed. But non-habitable use would be implicit regardless of a condition imo. But agree that the below screws him.

https://www.boards.ie/discussion/comment/119771843#Comment_119771843

That would mean only using it for an office, den, home cinema etc. Turning it into a self contained unit is a breach of that.

Regardless of the condition, you know your not using it in like with the grant. So the situation is the same. Being there over 12 years seems unlikely.

lebigmacncheese

Not looking good then.... How do you mean "Being there over 12 years seems unlikely" if you don't mind me asking? It has been as it is today for nearly 13 years....