Some might call them loopholes! Here is a look at Developers opportunistic approach to planning permission loopholes

Planning permission “loopholes” are few and far between in Ireland. Legislation is in the process of being passed whereby builders will be blocked from starting further phases of housing developments until creche facilities are up and running, under Government plans to expand the number of creche places.

In Galway there are reports from a local county councillor that  fake marriage break-ups are being used to get around the planning restrictions on one-off houses in rural Ireland. The issue was raised at a Galway County Council meeting which highlighted incidences where married couples pretended to break-up in order to successfully secure planning permission for a second, one-off house, in addition to their own family home.

We take a look at some of the most common methods and approaches developers and builders take in relation to planning.

Sharp practice and bending the rules. Many developers take an opportunistic approach to planning.

While it is important to note that the vast majority of planning permission applications in Ireland are submitted and assessed in good faith, there have been instances where developers have sought to bend the rules or totally ignore the planning law system. Some of the most common scenarios include:

  1. Exemptions for Agricultural Development: There are certain exemptions in place for agricultural development, such as the construction of farm buildings and facilities, that do not require full planning permission. These exemptions can be exploited by developers who may claim that a development is for agricultural use when it is in fact intended for other purposes. For example, a building developer using agricultural land under the guise of farm buildings but being used for the processing of building materials, soil and waste.
  2. Use of Unauthorised Development: There have been instances where developers have carried out unauthorised development, such as building structures without planning permission, and then subsequently applied for retention permission. This can be seen as a way to bypass the planning permission process and gain permission after the fact.
  3. “Garden Grabbing”: In some cases, developers have sought permission to build on small parcels of land that are adjacent to existing properties, often referred to as “garden grabbing”. These developments can be controversial as they can have an impact on the privacy and amenity of neighbouring properties.
  4. Failure to Disclose Relevant Information: Developers are required to disclose all relevant information in their planning permission application, including any previous development history, ownership details, and potential impacts on the environment or local town. In some cases, developers have failed to disclose this information, which can lead to planning permission being granted on incomplete or inaccurate information.
  5. Some developers will simply lodge an identical planning application as soon as the appeals system clicks into gear in relation to their initial planning application. Confident they have halted a development until An Bord Pleanala decides their appeal, the objector may, barring ultra vigilance, miss publication of a second almost identical application by the developer.
  6. Some developers approach development in a piecemeal manner, initially applying for a basic planning permission in relation to a property and, over time, making several planning applications in order to intensify use. For example, making several planning applications in relation to a Victorian single use residence with a view to converting it into an apartment complex.

What are the repercussions of poor enforcement and regulation?

Some potential consequences include:

  1. Impact on local area: Large-scale developments can put a strain on local infrastructure such as roads, water supply, and sewage systems, leading to congestion and decreased quality of life for residents in the area. An example of this is the ongoing dispute residents are having with the Dublin Airport Authority (DAA) and limitation of the use of the airport’s runways at night time in order to control noise pollution.
  2. Destruction of Natural Habitats: Unregulated development can lead to the destruction of natural habitats, which can have a negative impact on local biodiversity and wildlife populations.
  3. Threat to Public Health and Safety: Unsafe or poorly planned developments can pose a risk to public health and safety, for example, by increasing the risk of flooding or fire. We recently saw the effect of this with Storm Antoni (August 2023) where many apartment developments were flooded as a result of adverse weather conditions.
  4. Loss of Cultural Heritage: Historic buildings and cultural heritage sites can be destroyed or damaged as a result of unregulated development, leading to the loss of important cultural and historical assets.
  5. Decrease in Property Values: In cases where a development has a negative impact on the local community, such as noise pollution or a loss of privacy, property values in the area may decrease.
  6. Breach of Planning Regulations: Unauthorised development is a breach of planning regulations, and can result in enforcement action being taken by local authorities, such as issuing an enforcement notice and/or legal action.

Overview of Planning Permission in Ireland

In Ireland, planning permission is required for most types of development, including new buildings, changes to existing buildings, and alterations to the landscape. The planning permission process is overseen by local authorities, which are responsible for assessing and deciding on planning applications.

The planning permission process in Ireland typically involves the following steps:

  1. Pre-application consultation: Before submitting a planning application, it is often advisable to consult with the local authority to discuss the proposal and ensure it meets planning guidelines.
  2. Application submission: The applicant submits a planning application to the local authority, including detailed plans and specifications of the proposed development.
  3. Validation: The local authority checks that the planning application is complete and meets all necessary requirements.
  4. Notice: Placing a notice on the property setting out clearly the details of the planning application.
  5. Public consultation: The local authority notifies the public and relevant stakeholders of the planning application and invites comments and observations. Submissions/observations must be made within 5 weeks beginning on the date of receipt of the planning application.
  6. Assessment: The local authority assesses the planning application against planning policies and guidelines, as well as any relevant legislation.
  7. Decision: The local authority makes a decision on the planning application, either granting or refusing planning permission.
  8. Appeals: If the planning permission is refused, the applicant may appeal the decision to An Bord Pleanála, an independent planning appeals board.

It is worth noting that the planning permission process can be quite complex, and it is important to ensure that all necessary guidelines and regulations are followed. Failure to do so can result in planning permission being refused and/or legal action being taken. Time is of the essence when it comes to lodging a submission or observation.

Types of planning permission

The most common ways to apply for planning permission include:

  1. Outline Planning Permission: provides a general indication of whether a proposed development would be acceptable in principle, but without detailed plans and specifications.
  2. Full Planning Permission: required for most types of development and involves submitting detailed plans and specifications of the proposed development.
  3. Retention Permission: used to seek permission to retain development that has already been carried out without the required planning permission.
  4. Permission for Subdivision: required when a property is to be subdivided into multiple units.
  5. Permission for Change of Use: required when a property is to be used for a different purpose than its current use.
  6. Strategic Infrastructure Development (SID) Permissions which are made directly to An Bord Pleanála: required for large-scale developments of national or regional importance, such as airports, ports, and energy infrastructure.

It is important to note that there may be other types of planning permission that are specific to certain types of development or locations. If you are unsure, you can check with your local authority to determine what type of planning permission is required for a particular development.

The role of local authorities

CIty and local county councils play a key role in the planning permission process. They are responsible for assessing and deciding on all planning applications (other than SID Permissions mentioned above), as well as enforcing planning policies and regulations. As part of this process, they can provide advice and guidance to applicants on the requirements for obtaining planning permission.

City and local county councils have an important role in ensuring that development is carried out in accordance with the terms of any planning permission granted. Unauthorised development is prohibited and the Council’s planning control officers will inspect properties in order to ensure that there is no unauthorised development. They can issue enforcement notices in order to ensure compliance with these terms and conditions, or revoke planning permission if it has not been complied with.

The Planning and Development Act 2000

The Planning and Development Act 2000 (as amended) sets out the framework for the planning and development process in Ireland. In general terms it requires the government to publish a National Planning Framework with strategic objectives, establishes a streamlined application system, mandates community involvement, emphasises environmental protection and provides enforcement powers. Its provisions aim to promote sustainable development whilst preserving natural and cultural heritage sites.

The Seven Year Rule

The “seven year rule” is a provision in Irish planning law (S.157(4) of the Planning and Development Act 2000) that states that local authorities cannot serve enforcement notices for unauthorised development (i.e. where no planning permission has been obtained) after seven years from the commencement date of the development. Albeit that it is unlikely that they will be sued by your local planning authority, it is not a “cure all” so to speak and it will remain as a flaw on title. The planning authority will not be able to attend on site and seek to serve you with an enforcement notice should your unauthorised shed, conversion or extension be more than seven years old.

In the case where planning permission was obtained. S. 157(4)(a)(ii) provides that the seven-year time period commences after the time period of the planning permission you obtained expires. Section 40 of the Planning and Development Act deals with the limit of the duration of planning permissions. Section 40(3) provides that a planning permission generally has a lifespan of five years beginning on the date of the grant of permission or, in addition, such further period that may be specified in the grant itself.

There is, however, another exclusion where you have failed to satisfy a planning condition concerning the use of the property. Accordingly, any change of use from that which is permitted pursuant to a condition in a planning permission granted after these dates is actionable at any stage, irrespective of when such change of use has commenced.  It is important to note also in compulsory purchase orders, the value attributable to a property as a result of an unauthorised development will be ignored.

The seven year rule does not apply to the Building Regulations, however, so you will have to make sure the property complies with the regulations, obtain a fire safety certificate if appropriate and an opinion on compliance with the building regulations. It should be noted that enforcement action can be commenced at any time with regard to development in the form of the operation of a quarry or the extraction of peat.

Article by: Milan Schuster