Planning Injunction
Enforcement by Injunction
It is possible for any person whatsoever (including the local authority) to apply to the High Court or Circuit Court for an Order to restrain and prevent a breach of planning permission. The application is often made by neighbouring owners affected by unlawful development.
The application may be bought by any person; the applicant need not be directly or personally affected. The local authority may bring the application.
An Injunction is a court order compelling the rectification of the breach. Breach of the injunction is contempt of court.
Application
The Circuit Court has jurisdiction over cases where the value is less than €3,000,000. In practice, this will cover the majority of properties. In cases above this level, the application must be brought in the High Court.
The planning authority or any third party may seek a planning injunction. Generally, the application is made against the owner or occupier of the land.
In the hearing of the application itself, an injunction will generally issue if there has been a breach. Unlike other injunction cases, a planning injunction is not an alternative to compensation. There is no jurisdiction to grant damages.
An injunction to enforce planning legislation may be applied for and granted by the High Court or the Circuit Court for the area concerned.
Injunction Order
An injunction may be granted if unauthorised development has been or is likely to be carried out. Unauthorised development includes development without permission and development, not in compliance with the conditions of the permission.
The court may require any person to do, not to do, to cease doing anything it considers necessary in order to rectify the unauthorised development. It may order the development be not carried, out a use be discontinued and/ or that the land be restored to its prior condition prior to commencement of unauthorised development insofar as practicable or for that the development be carried out in conformity with the relevant permission and conditions.
The Court Order will generally prohibit the continuance of the planning breach. The person may be required to cease to do any act which the Court considers necessary to ensure conformity with planning legislation. This may be an Order, for example, compelling cessation of use of the property for an unlawful purpose.
Breach of the Court Order can be enforced by way of an application for committal for contempt of Court. See our separate chapters on the enforcement of Court Orders.
Variants
It is possible to apply on short notice for a temporary Injunction pending the hearing of the full proceedings. In this case, the general principles in relation to injunction applications apply
An Order may be made if there is an apprehended planning breach. An Order may be made to restore any land into its position prior to the unlawful unauthorised works or change of use. An Order may be made to require conformance with any planning permission or condition.
The court may order restoration, reconstruction removal and demolition or alteration of any structure.
Factors
The Courts have discretion in granting or refusing an injunction. A planning injunction is not subject to the same criteria as an interlocutory injunction.
The conduct of the applicant is a consideration. The Court will consider the applicant’s good faith. The respondent’s knowledge will often be relevant.
If the latter acted in good faith, this may favour withholding an injunction. If a respondent acted with knowledge of the beach or with reckless disregard, then an injunction is more likely. If the applicant would not suffer detriment, this may be relevant.
Prejudice or hardship to the respondent will not generally carry weight, particularly in the case of deliberate and conscious breach of planning legislation. A delay in the institution of proceedings may be relevant.
The court will have regard for the public interest. Compliance with planning legislation is a legitimate concern of the public. An unreasonable delay in taking action may be a factor against granting relief. A trivial and minor breach may lead to the court exercising discretion not to grant an injunction.
Retention Permission
An application for retention of planning permission is not relevant. An application for an injunction in a planning case may not be cured by reason of obtaining planning permission.
In practice, the Court may have some discretion or flexibility where retention permission is pending or likely to be granted. Courts have the discretion to put a stay on the enforcement of an Order.
Where retention permission is, in fact, granted, the breach would be rectified. However, the defendant may be made liable for the previous breach.
Costs
The court may award costs as it considers appropriate in awarding a planning injunction. The court must order the respondent defendant to pay the costs and expenses measured by the court unless are set it is satisfied there are special and substantial reasons for not doing so. This includes the costs of the investigation.
Contempt
Failure to comply with an undertaking given or Court Order is contempt of court. An application can be made to imprison a person deliberately breaching a Court Order until they purge their contempt by agreeing to comply.
A person may be subject to committal to prison for breach. A corporate body may be subject to sequestration of its assets.
Time Limit
There is a period of seven years for the commencement of enforcement proceedings, where there is no planning permission. It is seven years from the expiry of the planning permission when the conditions of the planning permission have been breached.
Breach of a use condition under planning permission is not subject to a time limit.