Planning Enforcement
Overview
There are a number of methods by which planning law is enforced. Different types of enforcement proceedings may be taken simultaneously by the planning authority. The planning authority can serve warning notices and enforcement notices. Failure to comply can be the subject of District Court proceedings, leading prospectively to significant daily penalties.
High Court and Circuit Court injunctions may issue requiring compliance on pain of committal to prison in default. Breaches of planning law are generally a criminal offence, which can be prosecuted summarily, in the District Court, and in very serious cases, in the Circuit Court on indictment.
Compliance may require cessation of use or works. It may require the demolition, removal or correction of unauthorised works. It may require compliance with the terms of the planning permission as reflected in the planning application drawings. It may require compliance with conditions imposed by the Council in granting the planning permission.
There are some circumstances in which planning authorities may require demolition and removal of structures or discontinuation of uses, even if use is lawful. These circumstances are highly exceptional, and compensation will usually be payable. In contrast, if the enforcement arises because of a planning breach, then no compensation is payable.
Approach to Enforcement
The Planning Authority’s approach to enforcement is likely to depend on the seriousness of the breach. If it would have granted planning permission in the first place, it may not require the works to be demolished. However, this is not to suggest that it is legally safe or desirable to build first and ask questions later. It is highly inadvisable to build in the hope that the planning authority might take no action and that, eventually, the breach will be regularised with the passage of time.
Retention permissions may be applied for, in order to regularise a breach. A retention permission is a retrospective planning permission permitting the retention of works or a change of use which has been undertaken without or in breach of the terms of planning permission. It does not alter the fact that the original breach was a criminal offence. Planning enforcement can proceed when retention permission is pending.
Formerly, there was a practice of suspending enforcement if an application for retention permission was made. This practice was removed by legislation in 2001. However, as retention permission does regularise the position as regards future breaches, it may act as a break on enforcement.
The 2010 Act provides that where unauthorised development takes place, which is not trivial or minor, and the developer or person concerned has not remedied the situation, the planning authority must take enforcement action unless there are compelling reasons not to do so.
Time Limits
There is a seven-year time limit for taking enforcement by the initiation of administrative enforcement by enforcement notice (which may be followed by District Court proceedings). This time limit also applies to enforcement by way of Circuit Court or High Court Injunction. The time limit was five years before 2001. There was no time limit on planning law enforcement until 1992.
Under general law, a prosecution for a summary offence (i.e. a minor offence) must be initiated within six months. The time limits commence running on the date of the original development or the original breach of planning permission. There is usually no time limit on prosecutions on indictment in the Circuit Court. The planning legislation provides a seven-year time limit.
Most planning breaches are prosecuted or enforced in the District Court. Some serious planning breaches can be prosecuted on indictment with a jury in the Circuit Court. The prosecution decides where the offence should be prosecuted. Prosecutions on indictment are extremely rare and are reserved for very serious breaches of planning permission law.
The seven-year period may run from the initial breach. Where there is planning permission, the period runs from the end of the life of the planning permission. This may, in effect, make the requisite period up to twelve years for the standards planning permission, which has a five-year life. The time limit does not apply to a condition concerning the use of land to which planning permission is subject.
In the case of works which require planning permission, the breach will take place when works are undertaken without or in breach of planning permission. Where a material change of use which requires planning permission, takes place without planning permission, there is a breach when that change takes place. If a use is abandoned and then restarted, there may be a further material change of use at the later date.
After Seven / Twelve Years
When the seven-year time limit expires, it usually gives immunity from enforcement under planning legislation. The development is still unlawful from other perspectives. There is no deemed planning permission.
This is significant in a number of contexts. Further development of the works, which might otherwise be exempt, will not be exempt. If compensation is payable due to compulsory acquisition or exercise of other governmental powers, it will not be based on works or use that breach planning law. The breach may constitute a breach of a lease on the part of a tenant, giving rights of forfeiture or enforcement to the landlord.
The seven-year time limits and enforcement does not apply to quarries and peat extraction. This is due to the ongoing damaging nature of the activities.
The seven-year time limit does not apply to a planning permission condition concerning the use of land to which the permission is subject.
Warning Letter
A planning authority has a general duty to investigate complaints about planning breaches. It must generally issue a warning letter when a valid complaint is made. Having done so, the planning authority must make a decision as to whether to issue an enforcement notice.
The local authority’s administrative procedure commences with a warning letter. This is the initial step in planning enforcement.
A warning letter will state that unauthorised works or use have come to the planning authority’s attention. It will state that
- that the planning authority considers that there has been a breach;
- observations may be made in writing regarding the circumstances within four weeks;
- that the planning authority officers may enter the land to inspect and
- explain the possible penalties involved.
The fact that a warning letter is issued does not mean that an enforcement notice or other enforcement proceedings will be taken. The planning authority has a general duty to ensure a decision is made within 12 weeks of the warning letter.
The person who made the initial complaint is entitled to notice of the decision not to serve or to serve an enforcement notice. The decision is entered into the statutory planning register.
The opinion has been expressed by a leading author on the subject that a warning letter has no direct legal effect. In this view, it does not stop the seven-year time limit from running.
The warning letter is not necessary and can be dispensed with in a case of urgency. A warning letter does not necessarily imply that there is a breach.#
Enforcement Notice
Under the administrative enforcement mechanism, the planning authority serves a notice specifying the breach. The enforcement notice will specify
- the land or property concerned;
- require specified steps;
- warn of the action the planning authority may take if the steps are not taken;
- require the person to refund the costs and expenses incurred by the planning authority and;
- warn of the above-mentioned consequences.
Once the notice takes effect breach, it is an offence not to comply. The offence is prosecuted in the District Court. The local authority largely determines whether there is a breach. The owner of the land can contest the matter in Court in various ways.
A planning authority may recoup its reasonable costs incurred in enforcement.
Non-Compliance
It is an offence to fail to comply with the requirements of an enforcement notice. It is an offence to assist someone or allow a failure to comply with an enforcement notice. The Court, in imposing sanctions, may order the person concerned to take specified steps by way of compliance.
If steps taken in the notice are not undertaken within the period specified or during an extended period of not more than six months, the planning authority itself can enter the property and take whatever steps are necessary to enforce the breach and procure compliance. This includes the demolition of the works. The planning authority may recover the expense incurred in enforcing the notice from the person served.
There is no method of appealing an enforcement notice. It may be possible to challenge it through other means under the Planning Acts.
Enforcement notices are entered on the planning register. A planning enforcement notice lasts ten years. A new enforcement notice will start the time running again.
Criminal Enforcement
The carrying out of works or a change of use without planning permission is a criminal offence. This may arise if works are carried out without planning permission or in breach of planning permission.
It is an offence not to comply with an Enforcement Notice. On conviction on indictment, the penalty is a fine of up to €12,600,000 and/ or imprisonment of up to two years. On summary conviction, the penalty is a fine of €5,000 or up to six months imprisonment or both.
It is a further offence each day the offence continues. This is a relatively unusual provision and may lead to very onerous continuing fines and penalties until the breach is remedied.
On conviction in an indictment, a continuing fine of up to €12,600 a day may apply. The continuing fine on summary conviction is up to €1,500 per day. Continuing fines apply every day on which the offence continued.
In the case of imprisonment, the punishment is not renewable in the same way. However, if the breach continues, there may be a new prosecution.
Minimum fines apply where the offence is the construction of an unauthorised structure. The judge does not have the discretion to fine less unless the accused can show he does not have the financial means to pay.
Criminal Issues
Companies can be liable for planning law offences. If an offence committed by a company was done with the consent, approval or facilitated by a person (such as a director or manager), that person can also be convicted.
Where a person is convicted of an offence, the costs of the planning authority must also be paid. This includes legal costs and expenses incurred in relation to the investigation, detection and prosecution of the offence. This may include monies paid to consultants, advisers etc.
If there is a planning permission, which may afford a defence to prosecution, this must be proved by the person prosecuted. It is not a matter for the planning authority to prove that there is no planning permission. An application for retention permission is not a defence.
S. 5 Application
There is a procedure for referring the question of whether there is or there is not work or change of use requiring planning permission to the planning authority and, on review, to An Bord Pleanála.
An application may be made when a question arises on enforcement. The Court, however, has the primary right to interpret legislation and need not wait for the outcome. The Courts may still proceed if such an application is pending.
Taking in Charge Notwithstanding Breach
Notwithstanding that a development has not been completed to the satisfaction of the planning authority and either—
- enforcement proceedings have been commenced by the planning authority within seven years beginning on the expiration, in respect to the permission authorising the development of the appropriate period, or
- the planning authority considers that enforcement proceedings will not result in the satisfactory completion of the development by the developer,
the authority may, in its absolute discretion, at any time after the expiration of the permission authorising the development or the appropriate period, where requested by a majority of the owners of the houses in question, initiate the procedures under the Roads Act to take the roads in charge.
In exercising its discretion and initiating procedures under section 11 of the Roads Act, the authority may apply any security given for the satisfactory completion of the development in question.