Planning Matters

Planning Issues

The general planning legislation status of the property should be ascertained.  See the separate sections in relation to planning law compliance.  The development plan will identify the zoning and the broad types of development which might be developed subject to planning permission.

In some cases, this may not be an issue such as where an existing fully developed property is bought.  However, if the buyer intends to develop the property in any way, the prospects of planning permission would be critical. In the case of development property or a site on which a property is to be built, the buyer may impose a condition making the purchase conditional on planning permission.

The planning permission process is long and arduous so the seller may not wish to accept such a condition which may tie up the land for several years without any commitment to buy.  There may be provision for a non-refundable deposit if the purchase does not proceed.  Under the seller’s perspective, an option may be a better arrangement.

The complexities of the planning process are such that the buyer may seek flexibility to opt out of the obligation to buy if permission is either refused or granted in a manner which is not economical to implement.  On the other hand, the seller will not wish to have the land tied up for a prolonged period with the possibility of no ultimate sale.

Where any of the above considerations are important, a planning search and proper investigations in consultation with the planning authority are appropriate.  Planning searches give relatively limited information and are in no way as comprehensive as the equivalent searches in England and Wales or Northern Ireland.  There is no mechanism in Ireland for a search of local authority notices or a local authority searches which systematically highlights risk and issues with the property and its vicinity.

Planning Search

Local authorities are obliged to maintain development plans showing the zoning of the property.  In practice, modern development plans are much more sophisticated than mere indications of the zoning for areas. The “planning register” to be maintained must contain details of planning permissions, enforcement and other planning matters directly affecting the property.

Historically such plans were kept in a variety of different ways by local authorities.  There may be a physical marking at a map of permissions affecting the particular property with notes of enforcement and designation.  In the last 10 years, much of this information is now available online.  However what is online is not necessarily the planning register and it is prudent to make direct enquiries with the local authorities in relation to key matters under planning law which may adversely affect the properties.

It is conventional in Ireland to make planning compliance enquiries and requirements in respect of the property itself after contract.  This is permissible if the standard planning compliance condition in the Law Society contract is present.  If, as is relatively common, this condition is varied or even deleted then it is necessary to make the planning compliance enquiries prior to contract.

Planning Enquiries I

The matters covered by the contract are compliance issues with the existing status of the property under planning and building control law.  The wider environmental and planning context of the property, such as zonings and the status of adjoining land which may be highly material in terms of the property’s value and which may adversely affect the property are not covered.

Although not conventional, it is desirable for a buyer to find out as much information from the seller prior to a contract relating to the status and prospect of future changes of status in the immediate environment.  Unfortunately, the methods for making such enquiries from public bodies are relatively poor.  The buyer may ask the seller questions regarding his state of knowledge of plans or prospective plans by public and other authorities which may affect the property.  The seller will usually be available if it misrepresents the true position, subject to eh terms of the contract in that regards,

The conventional planning search even if done by law searches, does not necessarily disclose future proposals which may affect the property or its vicinity, where they are not yet marked on the planning documents. Therefore, it is desirable to ask the seller to disclose any information he may have in relation to the same.

The above conditions only oblige the seller to disclose notices when they have crystallised and finalized.  In practice,  where the exercise of local or public powers is involved, the actual formal exercise of powers on the issue of notice by the local authority by way of enforcement or otherwise will usually be the last step in a long process.  The seller will usually be aware of the prospective exercise of such powers and may have received correspondence.  The above standard condition does not oblige the seller to disclose the same so that a pre-contract enquiry is prudent.

Ideally, a buyer would make enquiries of local authority and other public authorities whose input may be relevant and affect the property.  In practice, there is no single point of contact. Local authorities and are divided into departments and it would be necessary to make enquiries of many such departments.

Unlike the position in Northern Ireland and England and Wales, there is no protocol by which local authorities or public authorities are obliged to answer questions in relation to designations and the possible present or future exercise of legal powers which might impact adversely on a property.

Planning Enquiries II

Where the buyer proposes to develop the property whether, by way of a new building or alterations, he should make very comprehensive investigations prior to the purchase of the property.  It is advisable to meet the relevant planning officers in relation to the prospect of the acceptance of a particular proposal. Planning consultants or architects may be retained where significant development is proposed.

However, planning authorities cannot give binding assurances as to the future exercise of their powers.  If the developer wishes to take the planning risk away, he should purchase subject to and conditional upon obtaining the required planning permission or purchase an option to buy.

Proposed development must also be considered with reference to any restrictions on the title which would limit or impede the proposal.  There may be covenants and conditions for the benefits of other properties which prohibit the development.  A lease under which the property is held may require the landlord’s consent or may prohibited certain development entirely.

The question of the supply of services for a proposed development should be fully explored.  This may entail acquiring easements from adjoining owners, environmental license for waste disposal and arrangements and agreements with local authorities for connection to services.

References and Sources

Primary Texts

Law society of Ireland: Conveyancing 9th Ed Brennan et al.

Investigating Unregistered Title- Magee 2012

Irish Conveyancing Law- Wylie & Woods 4th Ed 2019

Irish Conveyancing Precedents- Laffoy

Irish Conveyancing Statutes – Wylie 2020 6th Edition:

eConveyancing and Title Registration quantity

Complex Conveyancing Law Society PPG Hession 2nd Edition

 

Registration of Deeds and Title in Ireland – Deeney 2014

UK Textbooks

Conveyaning Handbook 28th Ed. Silverman et. al (annual)

A Guide to Conveyancing Residential Property by Alan Stewart

A Practical Approach to Conveyancing (22nd ED) Robert Abbey and Mark Richards

A Practical Approach to Commercial Conveyancing and Property 5th Ed Robert Abbey