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 be made 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 corrections 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 by 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 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.

Different time limits apply to criminal breaches.  Under general law, a prosecution for a summary offence (i.e. a minor offence) must be initiated within six months. The time limits commence to run 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 proves for 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 a 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.he time limit does not apply to a condition concerning the use of land to which a 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. Prosecutions on indictment would be extremely rare.

When the seven-year time limit expires, it 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 which 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 7-year time limits and enforcement does not apply to quarries and peat extraction. This is due to the ongoing damaging nature of the activities. It does not apply to a condition concerning the use of land to which a planning permission is subject.

Administrative Enforcement

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 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 in the subject, that a warning letter has no direct legal effect. On this view, it does not stop the seven-year time limit 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.

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.

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 up to €12,600,000 and/ or imprisonment up to two years.  On summary conviction, the penalty is a fine €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.

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 a 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.

Enforcement by Injunction I

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.  This type of 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.

An Injunction is a court order compelling the rectification of the breach. It can be bought at very short notice.  The Circuit Court has jurisdiction to cases where the rateable valuation is less than €254.  In practice, this will cover the majority of properties.  In cases above this level, the application must be brought in the High Court.

Generally, the Application is made against the owner or occupier of the land.   An initial Application may be made for an Injunction.  A very speedy procedure applies.  In relation to the Application itself, an Injunction will generally issue, if there has been a breach.  Unlike other injunction cases, a planning injunction is not a discretionary remedy, whereby compensation can be given in place.

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.  The unsuccessful applicant will have to pay the cost unless there are special and substantial reasons.

Enforcement by Injunction II

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 enforcement of Court Orders.

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 Courts have a discretion in granting or refusing an Injunction.  The conduct of the applicant is a consideration.  The Court will consider the applicant’s good faith. The respondent’s knowledge would also 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 institution of proceedings may be relevant.  The application for retention of planning permission is not relevant.  However, 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 enforcement of an Order.

There is a procedure for referring the question of whether there is or there is not works or change of use require 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 primary right to interpret legislation and need not wait for the outcome.  The Courts may still proceed if such an application is pending.

Failure to comply with an undertaking given or Court Order is contempt of court.  The Application can be made to imprison a person deliberately breaching a Court Order until they purge their contempt by agreeing to comply.

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, as respects 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 as respects the permission authorising the development of the appropriate period, where requested by a majority of the owners of the houses in question, initiate the procedures under  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.