Adminstrative Enforcement
Investigative Powers
An enforcement notice may issue on foot of an investigation by the planning authority. This may be derived from its own enforcement activities or on foot of a complaint. There will usually be a prior warning letter.
Authorised officers of planning authorities have powers to enter land and property for the purpose of enforcing planning legislation. They may make inspections, surveys, and excavations and may take samples, photographs and other records.
Unless consent is given by the occupier or if not by the owner, they give notice in writing of the intention to enter allowing the person notified to make an application to the District Court prohibiting the entry. Members of the planning authority may be accompanied by members of an Garda Siochana.
An application can be made to the District Court for a warrant to enter in the event of urgency. This may occur where the person is being prevented from entering, or there is another reason to believe that evidence of an offence may be removed or destroyed or a structure may be damaged or destroyed.
Warning Notice
The planning authority has an obligation to issue a warning letter as soon as may be, but not later than six weeks after receipt of a written complaint. Where the matter does not arise on foot of a direct complaint, the planning authority must take action as soon as may be.
The form of a warning letter is not prescribed. It signals that unauthorised development is or may have been carried out and that the person may make submissions within a four-week period. It indicates that an enforcement notice may be served and sets out the consequence or failures if there has been an offence or on later enforcement pursuant to an enforcement notice.
Enforcement Decision
The planning authority is obliged to carry out an investigation with a view to issuing an enforcement notice if this is necessary. The planning authority is under a duty to take decisions on whether an enforcement notice should issue as expeditiously as possible. It is an objective to make the decision within 12 weeks of the warning letter.
In making the decision on whether or not to issue an enforcement notice, the planning authority considers the complaint, submissions and observations made and any other material considerations.
An enforcement notice may be issued without the warning notice procedure having been followed. However, in almost all cases, the warning notice and the requisite procedures will have first been followed.
The planning authority is obliged to notify the complainant of its decision in relation to the issue of an enforcement notice. It may give a copy of the warning letter to the complainant.
If the planning authority does not issue an enforcement notice, it must inform the person who has been served with the warning letter or made a submission. Particulars of warning letters are kept in the planning register.
Notice
Where in the opinion of the planning authority, due to the nature of the unauthorised development or other material considerations make it necessary to take urgent action, the planning authority may proceed directly to issue an enforcement notice. In the latter case, if an unauthorised development has been the subject of a complaint, then the complainants are to be notified within two weeks of service of the enforcement notice.
Notices may be served personally or by leaving it at the address with a person who resides there or by registered post. It may be left with a person over 16 years of age who is resident or employed on the premises, or by fixing is in a conspicuous place.
Steps Required
The enforcement notice requires remediation or correction of the breach. It notifies the addressee that if the required steps are not taken within the specified period, the planning authority may enter the land, take the steps and recover the expenses.
It may require a refund of the costs and expenses incurred in relation to the investigation, detection and issue of the warning notice. It will specify that failure to take the steps within the requisite period may cause the person notified to be guilty of an offence.
The enforcement notice will require
- that where no permission has been granted that the development must cease or not commence
- that where permission has been granted, that the development is undertaken in conformity with the conditions and requirements of the planning permission
The steps required to regularise the position may include demolition and removal of structures, discontinuance of use or restoration of land within a period. The notice will warn that failure within such period specified, which may be up to a maximum of six months, empowers the planning authority to enter the land, do the works and recover costs. It warns that failure leads to criminal liability.
Enforcement
Breach of the requirements of an enforcement notice is an offence. There is an offence for any person knowingly to assist or permit such non-compliance.
The planning authority may take steps required to rectify the breach and recover the costs and expenses, including the cost of investigation, administration legal fees and administration costs, including costs incurred with consultants.
Retention Permission not Defence
Under the earlier legislation, the enforcement of planning legislation was often met with an application for retention permission. Under the 2000 legislation, it is not a defence to have applied for retention permission since the date of the warning letter or before the relevant enforcement proceedings.
Enforcement action may not be suspended or withdrawn by reason of an application for retention permission. Even if planning permission is granted, the authority is under a duty to enforce the original breach.
It is a defence to the criminal enforcement that the person took all reasonable steps to secure compliance. An enforcement notice may be withdrawn. The reasons for withdrawal must be entered into the planning register.
An enforcement notice ceases to have effect ten years after its service.
Time limits
No warning or enforcement notice can be served, nor proceedings for an offence may be commenced
- where no permission has been granted for the development seven years from the date of commencement of the development
- where permission has been granted seven years after the expiration of the planning permission life.
Quarries & Peat
Where a planning authority establishes, following an investigation, that unauthorised development (other than development that is of a trivial or minor nature) has been or is being carried out and the person who has carried out or is carrying out the development has not proceeded to remedy the position, then the authority shall issue an enforcement notice under this section or make an injunction application unless there are compelling reasons for not doing so.
Where the development was carried out not more than seven years prior to the date on which the 2010 Act came into operation, a warning letter or enforcement notice may issue, or proceedings may be commenced at any time in respect of the following development:
- operation of a quarry;
- extraction of peat”,
Where the development was carried out not more than seven years prior to the date on which the 2010 Act, an application for an order may be made at any time in respect of the following development:
- operation of a quarry;
- extraction of peat.