# Just discovered that our garage is not compliant with the planning permission granted



## anamcara (5 Apr 2010)

We have just discovered that our garage is not compliant with the planning permission granted. 

When we got our pp we just handed the lot over to the builder and he built the garage. This was 5 years ago. 

The permission did state it had to be 1m from the boundary. While it is at one end the front of the garage is only 500mm from boundary. (the boundary is at an angle). What should we do about this? 

If we apply for retention could our neighbours object? Or should we leave well enough alone? Is it ok after a certain length of time?

We dont know what to do about this. Is it likely that we would have to knock the garage? 

We are governed by Wicklow County Council and are living in a housing estate.


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## PaddyBloggit (5 Apr 2010)

How did you discover it?


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## anamcara (6 Apr 2010)

A friend mentioned that the regulation was 1 metre and wanted to know if we'd had an issue getting our permission. It was only then we looked at our granted permission and measured ot the boundary. It is 1 metre at the widest part but decreases to 500mm. Regardless of how it was discovered where do we stand legally?


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## Superman (6 Apr 2010)

If the original permission was for both house and garage then the problem affects the permission for the house as well.

You would then have to apply for retention permission for both the house and the garage.  Unless there are aggravating circumstances, you are likely to get retention permission - but you should talk to a competent professional.

The council's right to require you to knock down the unauthorised development starts at the end of validity of the Permission (i.e. 5 years from date of Permission) and this lasts for 7 years.  At that point, it remains unauthorised development and there will always be difficulties selling it on.  There are also difficulties associated with this. If your land is CPO'd, the state does not need to pay you for the value of the property. If the property burns down, you do not have a right to rebuild.  Also you have no right to be connected to water supply.  
However the council loses the right to ask you to knock it down.

If you apply for Retention, your neighbour can object.


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## onq (6 Apr 2010)

Superman,

Hats off to you.

I actually thought you were wrong about the effective 12 year time to take action regarding offences where a permission was granted.

This is because the council only have 7 years in which to take action for offences for which permission was not sought.

This seems inequitable, but this appears to be the relevant section and you seem to be in the right. 

I'd appreciate if if you could give references about the right to CPO compensation and rebuilding - is permission only needed for commercial developments?

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon       as a defence or support - in and of itself - should legal action  be      taken.
Competent legal and building professionals should be asked to advise in       Real Life with rights to inspect and issue reports on the matters  at      hand. 		

===================================

From: http://www.irishstatutebook.ie/2000/en/act/pub/0030/print.html

Number 30 of 2000

PLANNING AND DEVELOPMENT ACT, 2000

 Prosecution of offences.

*157.*—(1)  Subject to _section 149_ , summary proceedings for an offence  under this Act may be brought and prosecuted by a planning authority  whether or not the offence is committed in the authority's functional  area.

 (2)  Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851,  and subject to _subsection (3)_ of this section, summary  proceedings may be commenced—(_a_) at any time within 6 months from the  date on which the offence was committed, or

 (_b_) at any time within 6 months from the  date on which evidence sufficient, in the opinion of the person by whom  the proceedings are initiated, to justify proceedings comes to that  person's knowledge,​whichever is the later.

 (3)  For the purposes of this section, a certificate signed by or on behalf  of the person initiating the proceedings as to the date or dates on  which evidence described in _subsection (2)(b)_ came to his or her  knowledge shall be evidence of the date or dates and in any legal  proceedings a document purporting to be a certificate under this section  and to be so signed shall be deemed to be so signed and shall be  admitted as evidence without proof of the signature of the person  purporting to sign the certificate, unless the contrary is shown.

 (4)(_a_) No warning letter or enforcement  notice shall issue and no proceedings for an offence under this Part  shall commence—(i) in respect of a development where no  permission has been granted, after seven years from the date of the  commencement of the development;

 (ii) in respect of a development for which  permission has been granted under _Part III_, after seven years  beginning on the expiration, as respects the permission authorising the  development, of the appropriate period within the meaning of _section 40_ or, as the case may be, of the period as  extended under _section 42_ .​(_b_) Notwithstanding _paragraph (a)_,  proceedings may be commenced at any time in respect of any condition  concerning the use of land to which the permission is subject.

 (_c_) It shall be presumed until the  contrary is proved that proceedings were commenced within the  appropriate period.​(5)  Proceedings for other offences under this Act shall not be initiated  later than 7 years from the date on which the offence concerned was  alleged to have been committed.


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## anamcara (6 Apr 2010)

the garage was not built with the house as the house predates it by 5 years. Separate planning permission was sought for the garage. This was granted in Oct 03. We would not be in a good position to apply for retention as our next door neighbours are have never been very friendly since they moved in and seem to grumble about everything all the neighbours do. I would not take the chance. I suspect this leaves us in a bad situation. Or at least until Oct 1010 when the permission will be 7 yrs old??


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## PaddyBloggit (6 Apr 2010)

Personally I would do nothing as the discovery of the error was by yourselves.

You built in good faith, got a builder and took it that all was well.

You would be opening a can of worms by going fro retention now especially with awkward neighbours.

Wait .... and if an issue arises with it deal with it then.

My question on who discovered it  .... I was just wondering if a 3rd party had raised the issue ... as they haven't leave well enough alone.


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## anamcara (6 Apr 2010)

Mmm......thats what I am thinking. I just need to be sure we are going to be ok legally if anything is mentioned after October as my understanding is that if all is well until then, well we're on the pigs back.


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## Superman (6 Apr 2010)

anamcara said:


> Mmm......thats what I am thinking. I just need to be sure we are going to be ok legally if anything is mentioned after October as my understanding is that if all is well until then, well we're on the pigs back.


No you are only safe after year 12 from the date of the grant of permission.  You are also safe until year 6 from the date of the grant of permission.  The reason is that you have 5 years to build in accordance with your Permission.  At any stage in that 5 years if there were a non-compliant part you could say "I'm not finished yet".  So the Council's right to enforce has to wait until the 5 years is up.  The Council has that right for 7 years from that date (i.e. October 2015).



> I'd appreciate if if you could give references about the right to CPO compensation and rebuilding - is permission only needed for commercial developments?


Randomly picked up back in the day for RIAI exams- I think some of it is from David Keane's book... Don't know about commercial.

At OP:
Personally in your situation I would also play dumb...


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## anamcara (6 Apr 2010)

Oh Ok. Best keep our heads down for the next 5 and half years so. Thanks for all the replies.


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## onq (7 Apr 2010)

Superman said:


> (snippage has occurred)
> Randomly picked up back in the day for RIAI exams- I think some of it is from David Keane's book... Don't know about commercial.


It was a full answer and well-recorded.
I'll have a look in the Keane books later in the week.
I could not find it online on a quick search.
I expect it'll be in Building and the Law.

Had a look online in the Statutes and Acts, but most comments seem to relate back to CPO in general and couldn't find that limiitation.
I think this stems from the basic principle in law that one shouldn't acquire a benefit from doing wrong.
So if someone built a 5,000 sqft Castle without permission they would get no compo.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon       as a defence or support - in and of itself - should legal action  be      taken.
Competent legal and building professionals should be asked to advise in       Real Life with rights to inspect and issue reports on the matters  at      hand.


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## onq (7 Apr 2010)

anamcara

Do you mind if I ask why you went for permission for the garage?

Normally they're exempted development and there seems to be no 1M restriction on proximity.

However my understanding is that once the development is already covered by a permission you have to abide by it.

IOW you cannot now turn around and claim - if it might have been compliant otherwise with the exempted development schedule - that its exempted.

See below.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon       as a defence or support - in and of itself - should legal action  be      taken.
Competent legal and building professionals should be asked to advise in       Real Life with rights to inspect and issue reports on the matters  at      hand. 		

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From:

http://www.irishstatutebook.ie/2001/en/si/0600.html

STATUTORY INSTRUMENTS.

S.I. No. 600 of 2001.

PLANNING AND DEVELOPMENT REGULATIONS, 2001


SCHEDULE 2

Article 6

Part 1
Exempted Development — General


Column 1
Description of Development

 CLASS 3

    The construction, erection or placing within the curtilage of a house of  any tent, awning, shade or other object, greenhouse, garage, store,  shed or other similar structure.


Column 2
Conditions and Limitations

 1. No such structure shall be constructed, erected or placed forward of  the front wall of a house.
   2. The total area of such structures constructed, erected or placed  within the curtilage of a house shall not, taken together with any other  such structures previously constructed, erected or placed within the  said curtilage, exceed 25 square metres.
   3. The construction, erection or placing within the curtilage of a house  of any such structure shall not reduce the amount of private open space  reserved exclusively for the use of the occupants of the house to the  rear or to the side of the house to less than 25 square metres.
   4. The external finishes of any garage or other structure constructed,  erected or placed to the side of a house, and the roof covering where  any such structure has a tiled or slated roof, shall conform with those  of the house.
   5. The height of any such structure shall not exceed, in the case of a  building with a tiled or slated pitched roof, 4 metres or, in any other  case, 3 metres.
   6. The structure shall not be used for human habitation or for the  keeping of pigs, poultry, pigeons, ponies or horses, or for any other  purpose other than a purpose incidental to the enjoyment of the house as  such.


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## anamcara (8 Apr 2010)

We applied for planning permission as the structure is over 25sq m. 

Next question. If they have been to planning Dept to look at our plans and permission granted. Can I find out? I know to view plans you have to fill out a form stating name etc. Can I request to see who has viewed our planning permission?


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## anamcara (8 Apr 2010)

forgot to mention that we now suspect this friend is trying to get information from us regarding our garage and permission. He has now mentioned that our next dorr neighbour has grumbled that the garage is not more than 1m to boundary. Lol! Neighbours.


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## csirl (8 Apr 2010)

anamcara said:


> We applied for planning permission as the structure is over 25sq m.
> 
> Next question. If they have been to planning Dept to look at our plans and permission granted. Can I find out? I know to view plans you have to fill out a form stating name etc. Can I request to see who has viewed our planning permission?


 
Most local authorities publish this stuff on line - I'd guess thats where most people will look first. They dont have to give any details to download the documentation.


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## onq (8 Apr 2010)

You may have a few options in relation to dealing with all of this.

If the planning permission plans showed the garage in the correct location [i.e. 1M away from the boundary] then the problem appears to lie with the main contractor having built it incorrectly.

If the plans showed it where it was built  [i.e. less than 1M away from the boundary] but a condition required the relocation to 1M away the builder should have taken this into account.

If a building professional was involved then there may be some liability attached, expecially if the work or monies spent were certified.

Of course, there may have been a problem with the original planning drawings.

These might have assumed a straight site where it was bevelled and so this should have been picked up at setting out by the contractor/ building professional.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon       as a defence or support - in and of itself - should legal action  be      taken.
Competent legal and building professionals should be asked to advise in       Real Life with rights to inspect and issue reports on the matters  at      hand.


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## tester1 (8 Apr 2010)

What is the worst they can do... .

can they make you knock the garage or the house?


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## onq (9 Apr 2010)

They can require you to build in accordance with the original permission.

More importantly, if this non-compliance is declared a breach of planning regulations, anyone can take a Section 160 action in a court of law.

That having been said, this is Wicklow, and relatively minor breaches are not always pursued - except where there are issues raised by truculent neighbours.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon       as a defence or support - in and of itself - should legal action  be      taken.
Competent legal and building professionals should be asked to advise in       Real Life with rights to inspect and issue reports on the matters  at      hand.


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## Staples (9 Apr 2010)

Is it not the case that someone (presumably an architect) would have had to certify to the council that the building was completed the buidling in accordance withthe planning permission?

In the absence of any such certification, will the building not always be "illegal" (for want of a better word) and therfore impossible to sell at any point in the future?


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## onq (9 Apr 2010)

There is no obligation for any professional to certify any works to the Council as a matter of right - certificates are sought by Employers/Clients.

In post #11 to this thread, I noted:

_"If a building professional was involved then there may be some  liability  attached, expecially if the work or monies spent were certified._"

Unfortunately, a lack of certification does not confirm lack of compliance or that the development is unauthorised _per se_.

Would that it did - there would be far more work around for building professionals generally and better completions.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon        as a defence or support - in and of itself - should legal action   be      taken.
Competent legal and building professionals should be asked to advise in        Real Life with rights to inspect and issue reports on the matters   at      hand.


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## Towger (9 Apr 2010)

Questions:
1 : Where does the original Planning Permission say the Garage should be, I don't know if this has been checked yet ?
2 : If the Garage is were the Planning Permission documentation says it should be and the Planning Permission granted, then does that not over ride the 1m rule?


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## browtal (18 Apr 2010)

*Clarification of Planning Time Limit*

I have been reading this thread. I am interested as we discovered that our neighbours house was built on part of our site, which we purchased after theirs was completed. 
We made application through a planning engineer to the Council for a decision. We were informed by the Council that the 7 years had elapsed and they had no longer any right to enforce planning conditions on our neighbour. We were willing to make a compremise consisting of getting our neighbour to close a window which, because of the change of compliance, overlooks our garden.
We are worried that should we sell  our home in the future we should have difficulty with the site details.
The Council was very definite that the 7 years was the time limit that applied, they have given us this in writing.
Could anybody advise.  Browtal


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## PaddyBloggit (19 Apr 2010)

What advice are you looking for browtal?

The Council has stated that it's too late for anything to be done.


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## onq (19 Apr 2010)

browtal said:


> I have been reading this thread.
> (snip)



Hi browtal,

There is a lot of information you're not presenting to us, including the date of the application, commencement and completion of your neighbour's house, etc.
The main question that needs to be answered is why your building professional didn't spot the trespass on your  title when you bought the house.
Here you may not have a leg to stand on, because the house was already built before you bought your own house.
Did you not retain someone to inspect the property, a competent building professional acting on your behalf?

As for addressing a matter of planning through an engineer, they're fine on their own ground, but my advice is that you'd be better with an archtitect who has specialized in planning law.
Please read posts 4 and 5 of this thread where this matter is dealt with in retail, with initial pithy and accurate comment from Superman [Post #4].
It is followed by quotations from the relevant legislation in support of what Superman posted by me, ONQ [Post #5].

In your case it appears that the council may be in error.

Assuming that the part of the house that is on your land was coverd by a permission originally, i.e. not unauthorised and not exempted development, it seems you should have five years from the expiry of the grant, i.e. 7 + 5 = 12 years in all, in which action can be taken.

Please read the posts referred to above and put any questions arising to us in this thread.
You should retain a competent building professional to advise you and represent your interest to the Council.
There may also be a private legal strategy you might avail of, but it will require going to court after engaging a solicitor.

Normally legal action is statute barred under general legislation after 6 years, and it remain to see how the Court will interpret planning legislation after such a long time has elapsed.

In relation to the window, is this within 1M of the boundary and so non-compliant, was it covered by the original permission, or is this a bit of horse-trading against the issue of trespass?

It looks like you may need an architect, a solicitor and a rectification of title to sort out the trespass, if you cannot resolve the trespass as part of the planning issue - i.e. get his house off your land.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon        as a defence or support - in and of itself - should legal action   be      taken.
Competent legal and building professionals should be asked to advise in        Real Life with rights to inspect and issue reports on the matters   at      hand.


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## Superman (19 Apr 2010)

browtal said:


> I have been reading this thread. I am interested as we discovered that our neighbours house was built on part of our site, which we purchased after theirs was completed.
> We made application through a planning engineer to the Council for a decision. We were informed by the Council that the 7 years had elapsed and they had no longer any right to enforce planning conditions on our neighbour. We were willing to make a compremise consisting of getting our neighbour to close a window which, because of the change of compliance, overlooks our garden.
> We are worried that should we sell  our home in the future we should have difficulty with the site details.


They have 7 years from 5 years after the date of Grant of Permission -i.e. until year 12 after the grant of Permission.

There may also be legal issues involved. If the house is built on your land, they may be trespassing, and you can get them to remove it. You have 12 years for this, before they get adverse possession. (Note however the time limit stated above for Council Proceedings.  If they have correctly followed procedure, 12 years has already passed).
There may also be issues regarding easements (your neighbour's right to light).  Basically, you may be able to block your neighbours window.  Easements take 20-30 years to form (depending on type) or are created in a legal document.

Talk to your solicitor.


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## browtal (23 Apr 2010)

Many thanks for your help.  
We are now prepared to leave things as they are, as the 12 years since their planning permission was granted has passed. We did however make our claim to the planning department before that time had elapsed and the planning department notified us, in writing, that the 5 years was all we were allowed to make our submission. Perhaps we should clarify with the department that the time is 12 years and not 5 as they told us. 
We are concerned that if we should decide to sell our property would this affect the title. Our solicitor was aware of the situation when we purchased the site. He said it would make no difference. 
We had endless hastle with the neighbour from the time we purchased the site. They objected to our raising the diviiding wall to the recommended height. We took the easy route and thought when they would get to know us and found that we were 'ok neighbours' they would be more neighbourly.  
They have caused us much heartache calling the guards to complain about our dog being loose in our garedn and a threat to their small child, in their garden. When the guards would not act on their complaint they called the dog warden, who also told us that she would not be back as the complaint was groundless. Nevertheless the bad feeling is not nice to live with.  
Many thanks for your help. Browtal.


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## onq (24 Apr 2010)

Browtal,

Read my sig disclaimer below - I composed it both to protect myself when giving advice in a public forum and to protect the recipients of that advice.

You have had limited advice based on giving us a limited amount of information - that's all.

Five years used to be the time allowed for local authorities to take action against unauthorised development, written into planning law in the 1994 Planning and Development Regulations if I recall correctly.

This in turn - if memory serves - was a recognition of a High Court Decision where a local authority took an enforcement action against an advertiser who owned a hoarding - the Judge ruled that they had had plenty of time in which to act and failed to do so before five years had elapsed.

The Planning and Development Act 2000 revisited the Judges ruling in three ways.

1. The new limit for taking action against unauthorised development is 7 years, not five, from the date its erected.

2. The new limit for taking action against development built in a non-compliant manner consequent on permission is effectively 12 years from the date of grant, although given the time taken for the development to be built, it till be less than 12 years from the date of completion.

3. There is no limit for taking action against an unauthorised use of land, for example mining or quarrying, and I suppose this might cover dumping and pollution, although this is covered under the Waster Management Act and the EPA Legislation IIRC.

So the Council may well have been correct - at one point it was five years from the date of the offence.

In relation to Certification by a professional, the statute of limitations applies and as far as I know that limits your taking legal action to 6 years from the date of the certificate, 12 years if it was issued "under seal" - a very unusual thing in a private housing estate.

Whatever about easements, adverse possession may be claimed by the adjoining owners.
Having built on the land they occupy it and may have developed a secure claim to it after more than 12 years.
You may find this link from the Land Registry website useful - click the accept button below the disclaimer to proceed.

http://www.landregistry.ie/eng/Prac...tle_By_Adverse_Possession_To_Registered_Land/

See Section 3 - Statute of Limitations

There are some "outs" - fraud, mistake or disability.
Fraud IIRC runs from the date on which it is discovered.

In your case you knew of this at some point a good while ago.
We still don't know when you first discovered the trespass.
We still don't know when you reported it to the Council.
Without these facts we cannot offer precise advice.

In terms of selling your property, we know that a piece of  the adjoining house was built on it.
If the work was done 12 years ago, you may have little chance of redress - but we just don't know
You don't seem to have the legal standing to challenge any adverse possession claim they might make.
If your solicitor issues a deed of rectification ceding the land to them there may be no problem with your sale.

There are new laws coming into place every year, which you should be very aware of dealing with neighbours like the one you describe.

http://www.landregistry.ie/eng/Legi...land_and_conveyancing_law_reform_act_2009.pdf

Look at Chapter 3 - _Party structures_
Depending on whether you are doing the work or your neighbour is, the provisions in this section can work for or against you.
The provision to levy a charge against your neighbour for benefits accruing from works you do will no doubt generate a lot of business in the Four Goldmines.


ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon         as a defence or support - in and of itself - should legal action    be      taken.
Competent legal and building professionals should be asked to advise in         Real Life with rights to inspect and issue reports on the matters    at      hand.


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## browtal (24 Apr 2010)

Hello ONQ.  I would like to express my gratitude to you for all the information which you provided.
At this stage it would be too difficult to establish whether we would have any rights as their house was built 13 years ago. We did build with the knowledge that the neighbours house was built on part of our garden.What we did not know until 3 years ago was the extent of the liberty they took with their building.  3 years ago they applied to build an extension and when we went to see the plans at the Co Councils office we then saw the extent of the imposition. Up to that point we thought there was only a few feet in question. The position of their house takes from the appearance of our house as it is only about 10 feet from our house gable wall, with their window looking into our garden. All of the other houses in the estate have a lot of space at both sides of their property. 
The only way we would have rights now I think is to take action against the planning department for rejecting our appeal incorrectely on the basis of the limitation having been passed.   While I would like to have them acknowledge their mistake we have no desire to proceed with legal action, life is not worth that.
Our only concern now is would we or our family have a problem selling our property.
I am most grateful to you for taking such time to reply. If we had known there were professionals who could help us at the time we would have dealt with it differently.
Many thanks Browtal


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## onq (24 Apr 2010)

Yeah, you;re very welcome Browtal, but the only way for you to have really "succeeded" was not to buy in the first place.
Few Courts will order the demolition of the family home when there is an equitable remedy available by way of financial compensation.
More importantly you would have to have been seen to act to mitigate your loss and that means taking action as soon a you became aware of it.
However as I say, the only real action was not to buy, and you failed to avail of that. 

Privacy of overlooking is another matter, and if this window was inserted later there would have been ample time to address it within the seven year period that came in with the Planning and Development Act 2000.
BTW, for buildings built 13 years ago, there were three years or so in which the five year rule would have applied, but my understanding of the way the law works is that once the new Act came in the transgression was then governed under the 7 year rule.
There may have been a gray area where houses built more than 5 years before the Act came into force were subject to a five year rule and therefore free from enforcement action on the Monday [say] but as soon as the new Act came in there was another two years to go if unauthorised, or seven if part of a permission!

Odd, but there you go.

Anyway, part of the reason people like me post to AAM is to offer this kind of advice since there seems to be a huge dearth of knowledge out there on such small scale and specific matters as private residential developments.
And since most of us live in private residences, whether rented or owned, there are a huge number of people out there who don't know their rights.
BTW, if you have 10feet to play with, you could consider a line of trees.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon          as a defence or support - in and of itself - should legal  action    be      taken.
Competent legal and building professionals should be asked to advise in          Real Life with rights to inspect and issue reports on the  matters    at      hand.


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