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Thanks all.

Planning exemption already used up in new development.

  • 15-06-2019 10:54am
    #1
    mcbert
    Registered Users Posts: 460 ✭✭


    Hi, when looking at a house to buy with an eye for a future extension, I think it is possible that a new development could have already 'used up' all exempted construction e.g. ALL extensions of any size would automatically need planning. Is there a word for this or a better way to describe this? I'm putting together a list of questions I need to ask an EA.


    Thanks.


Comments

  • #2
    sydthebeat
    Subscribers Posts: 40,972 ✭✭✭✭sydthebeat


    mcbert wrote: »
    Hi, when looking at a house to buy with an eye for a future extension, I think it is possible that a new development could have already 'used up' all exempted construction e.g. ALL extensions of any size would automatically need planning. Is there a word for this or a better way to describe this? I'm putting together a list of questions I need to ask an EA.


    Thanks.

    That would be in the planning conditions.

    So if you are purchasing, ask to see the planning conditions of all applications pertaining to that house


  • #3
    mcbert
    Registered Users Posts: 460 ✭✭mcbert


    Thanks!


    Im curious what are the chances that a typical enough estate built in early 2000s would have similar conditions? I've only heard about this being a thing very recently, and only with new estates...


  • #4
    sydthebeat
    Subscribers Posts: 40,972 ✭✭✭✭sydthebeat


    mcbert wrote: »
    Thanks!


    Im curious what are the chances that a typical enough estate built in early 2000s would have similar conditions? I've only heard about this being a thing very recently, and only with new estates...

    I've seen it included in applications in the early and mid 2000s.
    Don't assume anything though.

    Also, it doesn't mean you cannot build. It just means you've to apply for permission to build.


  • #5
    Gumbo
    Moderators, Society & Culture Moderators Posts: 38,429 Mod ✭✭✭✭Gumbo


    Clongriffin from the 2000’s has this condition.
    Ask the EA what planning it’s been constructed under and post back up here. Someone may be able to have a read of the conditions and point you in the right direction.


  • #6
    PhoenixParker
    Registered Users Posts: 2,671 ✭✭✭PhoenixParker


    Rather than asking just look up the planning yourself. Then you can trust the answer. It'll be on the council's website.


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  • #7
    Prenderb
    Registered Users Posts: 1,560 ✭✭✭Prenderb


    Surely each house, having been built according to a planning permission, would continue to have the benefit of being able to avail of any planning exemption available generally?

    Unless I'm misunderstanding the question - A house type with a kitchen "extension" is usually just an "extension" compared to other house types in that development. Each individual house would, in my view, be entitled to use any available exemptions regardless.

    I would still check the planning conditions, given it's easily done.


  • #8
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    There are some newer estates that specifically preclude any planning exemptions. I assume this is under the instruction of the local authority


  • #9
    Gumbo
    Moderators, Society & Culture Moderators Posts: 38,429 Mod ✭✭✭✭Gumbo


    Prenderb wrote: »
    Surely each house, having been built according to a planning permission, would continue to have the benefit of being able to avail of any planning exemption available generally?

    Unless I'm misunderstanding the question - A house type with a kitchen "extension" is usually just an "extension" compared to other house types in that development. Each individual house would, in my view, be entitled to use any available exemptions regardless.

    I would still check the planning conditions, given it's easily done.

    No that’s incorrect interpretation.

    Basically when the original developers were proposing the scheme, the density of the site (the number of units) was at its max. So in order to control development, a condition that de-exempts the exemptions was put into some developments.


  • #10
    Marcusm
    Registered Users Posts: 10,183 ✭✭✭✭Marcusm


    kceire wrote: »
    No that’s incorrect interpretation.

    Basically when the original developers were proposing the scheme, the density of the site (the number of units) was at its max. So in order to control development, a condition that de-exempts the exemptions was put into some developments.

    Conditions such as that might not be capable of becoming a burden on a freehold title at this stage. A decent solicitor could advise. The mere fact that it was agreed between the planning authority and the developer may not be binding on subsequent acquirers who have not acceded to the stipulation. Likely it was included in the initial sale as a condition. Not necessarily an enduring one.


  • #11
    BryanF
    Moderators, Home & Garden Moderators Posts: 10,140 Mod ✭✭✭✭BryanF


    Marcusm wrote: »
    Conditions such as that might not be capable of becoming a burden on a freehold title at this stage. A decent solicitor could advise. The mere fact that it was agreed between the planning authority and the developer may not be binding on subsequent acquirers who have not acceded to the stipulation. Likely it was included in the initial sale as a condition. Not necessarily an enduring one.

    The planning condition is associated with the development / property / house.

    Nothing to do with developer / owner / subsequent owners

    A solicitor would defer to an arch or Engineer, you can take it that Sydthebeat & kceire know this


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  • #12
    sydthebeat
    Subscribers Posts: 40,972 ✭✭✭✭sydthebeat


    Marcusm wrote: »
    Conditions such as that might not be capable of becoming a burden on a freehold title at this stage. A decent solicitor could advise. The mere fact that it was agreed between the planning authority and the developer may not be binding on subsequent acquirers who have not acceded to the stipulation. Likely it was included in the initial sale as a condition. Not necessarily an enduring one.

    The conditions are legally binding to the development. They are not an "agreement" between the planning authority and the developer.


  • #13
    Gumbo
    Moderators, Society & Culture Moderators Posts: 38,429 Mod ✭✭✭✭Gumbo


    Marcusm wrote: »
    Conditions such as that might not be capable of becoming a burden on a freehold title at this stage. A decent solicitor could advise. The mere fact that it was agreed between the planning authority and the developer may not be binding on subsequent acquirers who have not acceded to the stipulation. Likely it was included in the initial sale as a condition. Not necessarily an enduring one.

    No, you are misinterpreting Planning conditions and and agreement. The Planning conditions are linked to the development for all time and are legally binding.

    No Architect, Engineer or Surveyor will issue a Cert or Opinion that contradicts a legal Planning Condition.


  • #14
    Marcusm
    Registered Users Posts: 10,183 ✭✭✭✭Marcusm


    BryanF wrote: »
    The planning condition is associated with the development / property / house.

    Nothing to do with developer / owner / subsequent owners

    A solicitor would defer to an arch or Engineer, you can take it that Sydthebeat & kceire know this

    That will depend on whether the agreement had the force of law under s47 Planning a& Development Act 2000 (as amended) and whether the local authority entered it in the land registry or registry of deeeds. I suggested referring to a solicitor for a good reason. While it can often be a condition of the planning that such provision be made, unless it is followed up with the relevant agreement and registration, it can often be unenforceable!


  • #15
    sydthebeat
    Subscribers Posts: 40,972 ✭✭✭✭sydthebeat


    Marcusm wrote: »
    That will depend on whether the agreement had the force of law under s47 Planning a& Development Act 2000 (as amended) and whether the local authority entered it in the land registry or registry of deeeds. I suggested referring to a solicitor for a good reason. While it can often be a condition of the planning that such provision be made, unless it is followed up with the relevant agreement and registration, it can often be unenforceable!

    Section 47s are a completely different thing to a planning condition.

    Section 47s usually pertain to restricting development on lands outside of the application lands which become relevant to obtaining permission of the subject site.

    Having a planning condition which "de-exempts" development is perfectly acceptable as there are sections of the P+D act which also explicitly de-exempt certain structures already.


  • #16
    Marcusm
    Registered Users Posts: 10,183 ✭✭✭✭Marcusm


    sydthebeat wrote: »
    Section 47s are a completely different thing to a planning condition.

    Section 47s usually pertain to restricting development on lands outside of the application lands which become relevant to obtaining permission of the subject site.

    Having a planning condition which "de-exempts" development is perfectly acceptable as there are sections of the P+D act which also explicitly de-exempt certain structures already.

    Section 34 does not provide for the continuing effect of planning conditions such as those described here. A local authority does not have a general power to preclude landowners from availing of their entitlement to undertake exempt development - in fact such a power would likely be unconstitutional. Section 47 is the only perpetual power making facility. Perhaps this is the wrong forum. It’s really a legal discussion rather than Surveying, engineering etc. It might be practice for these to be set down as planning conditions but these are almost certainly ultra vires the local authority unless in a document having the force of law, such as an agreement contemplated under section 47.


  • #17
    woohoo!!!
    Registered Users Posts: 803 ✭✭✭woohoo!!!


    Marcusm wrote: »
    sydthebeat wrote: »
    Section 47s are a completely different thing to a planning condition.

    Section 47s usually pertain to restricting development on lands outside of the application lands which become relevant to obtaining permission of the subject site.

    Having a planning condition which "de-exempts" development is perfectly acceptable as there are sections of the P+D act which also explicitly de-exempt certain structures already.

    Section 34 does not provide for the continuing effect of planning conditions such as those described here. A local authority does not have a general power to preclude landowners from availing of their entitlement to undertake exempt development - in fact such a power would likely be unconstitutional. Section 47 is the only perpetual power making facility. Perhaps this is the wrong forum. It’s really a legal discussion rather than Surveying, engineering etc. It might be practice for these to be set down as planning conditions but these are almost certainly ultra vires the local authority unless in a document having the force of law, such as an agreement contemplated under section 47.
    Interesting legal opinion. Local authorities have being adding such planning conditions for years, including many conditions that have nothing to do with exempt development. I am confident that if as you suggest local authorities have no legal basis for such planning conditions that such would have been successfully challenged in the courts by now, and those involved in the planning business would all be aware of it.

    As an aside each development site that has such conditions attached to the planning permission would differ from each other. What is unreasonable in one may be fine in the other. Also if adding such a condition allows a permission to be granted rather than refused, well potential legal challenges rapidly dry up. One still has the option to obtain planning and build.


  • #18
    sydthebeat
    Subscribers Posts: 40,972 ✭✭✭✭sydthebeat


    Marcusm wrote: »
    Section 34 does not provide for the continuing effect of planning conditions such as those described here.

    All section 34 does is give legal basis for the planning authority to determine an application and impose conditions.
    What you say it does not do, it actually does.
    The conditions are not time constrained unless specifically stated, they continue with the development throughout its lifetime.

    For example, If a development is designed with "open fronted" gardens, and the planning authority imposes a condition saying that no front boundaries shall be constructed without permission, notwithstanding its exempted development status... then i would consider that a reasonable condition as the exempted development would in fact counteract section 4 1 h and de-exempt the development regardless.

    Perhaps you would like to offer some real life examples of where this condition has been successfully challenged and changed??

    because the majority of regular posters on here are professionals who work in the industry as it is, and not as it might be.


  • #19
    Prenderb
    Registered Users Posts: 1,560 ✭✭✭Prenderb


    kceire wrote: »
    No that’s incorrect interpretation.

    Basically when the original developers were proposing the scheme, the density of the site (the number of units) was at its max. So in order to control development, a condition that de-exempts the exemptions was put into some developments.

    Interesting - I haven't come across this one before. Makes a certain amount of sense, but one which seems to me could get homeowners quite easily into trouble.

    Thanks for clearing it up.


  • #20
    Gumbo
    Moderators, Society & Culture Moderators Posts: 38,429 Mod ✭✭✭✭Gumbo


    Prenderb wrote: »
    Interesting - I haven't come across this one before. Makes a certain amount of sense, but one which seems to me could get homeowners quite easily into trouble.

    Thanks for clearing it up.

    It has done in the past.
    Planning Enforcement had to enforce the condition from developments here in Dublin.

    Now the home owners applied for planning and were successful so they were able to regularize it.


  • #21
    BryanF
    Moderators, Home & Garden Moderators Posts: 10,140 Mod ✭✭✭✭BryanF


    Marcusm wrote: »
    It’s really a legal discussion rather than Surveying, engineering etc. .
    Na it’s the correct forum
    sydthebeat wrote: »
    .Perhaps you would like to offer some real life examples of where this condition has been successfully challenged and changed??

    because the majority of regular posters on here are professionals who work in the industry as it is, and not as it might be.

    Marcusm can you offer an example of where your argument has been challenged in the courts
    woohoo!!! wrote: »
    . if as you suggest local authorities have no legal basis for such planning conditions that such would have been successfully challenged in the courts by now, and those involved in the planning business would all be aware of it. .


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  • #22
    mcbert
    Registered Users Posts: 460 ✭✭mcbert


    So I looked up a particular house on Galway city's online planning system - house built 1996 or so. I noticed this:

    "Notwithstanding the provision in the Local Government (Planning and Development) Acts, 1963 and the Local Government (Planning and Development) Regulations 1994, no shed, store, garage or other free-standing structure (other than structures applied for in this application) which exceed 9.3 Sq. meters in area and 2.5 meters in external height above the highest adjoining ground level, shall be erected within the curtilage of the dwelling houses without a prior grant of planning permission.
    Reason:
    To prevent excessive building density and protect the visual amenities of the area."

    So this looks like an effort to limit density of the development, but unless I'm reading it wrong - it only applies to free-standing structures - but not to something like an extension. There are no other conditions in there that look relevant. So for an extension, it looks to me like standard exemptions would still apply. Anyone care to comment?


  • #23
    sydthebeat
    Subscribers Posts: 40,972 ✭✭✭✭sydthebeat


    I think your reading of that is very reasonable


  • #24
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    mcbert wrote: »
    unless I'm reading it wrong - it only applies to free-standing structures - but not to something like an extension. There are no other conditions in there that look relevant. So for an extension, it looks to me like standard exemptions would still apply. Anyone care to comment?

    Is there enough space in the garden/s for the exemptions to allow an extension?


  • #25
    mcbert
    Registered Users Posts: 460 ✭✭mcbert


    Graham wrote: »
    Is there enough space in the garden/s for the exemptions to allow an extension?


    I believe so, yes, without reducing the garden to the minimum size.


  • #26
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,204 Mod ✭✭✭✭godtabh


    I know plenty of new developments in DUblin have them. One lad built a new shed. Had to take it down about a week after finishing it!


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