# Any advice about private legal action against developer ?



## redstar (8 Jul 2008)

The developer of our estate has a list of works outstanding for about 7 years now, and steadfastly refuses to complete any of them. The Council are not yet in a position to take the estate in charge until the works are completed as per the original planning permission. 

The Coumcil have issued Enforcement Orders against him but seem incapable of going any further. The developer always has an excuse to get out of doing any work, which the council appear to accept at face value.
The Developer appears to have a few friends in the council and so we have no confidence that they will take the next step ie bring him to court and force him to complete the works.

The residents assoc are very frustrated with this saga and are now talking about taking a private case against him. We know little about whats involved in doing this eg the process, costs, pitfalls etc ... so any advice much appreciated


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## mf1 (8 Jul 2008)

1. Hugely expensive
2. Hugely timeconsuming
3. Hugely personally draining. 

Unless you have a very committed team of residents willing to throw themselves into the project and fund it, it will be an even longer harder struggle. 

As a practising solicitor, I might have dealt with this type of work in times past - probably no longer. Why? 

Mostly, ( not always) sections of the R A slide away, don't want to  be involved, don't want to pay ( surely someone else should be responsible?), think you're very expensive, can't find time to instruct you and essentially want a magic wand waved to make the whole sorry saga just right itself. 

The developer may have friends but this won't help  him if there is a Court order and he cares enough not to ignore it. That is the nub - if he does not want to do these works, and even if a Court orders him to do so, will he do them?  

If one of the residents was a solicitor, it would be worth while asking them if they would be willing to take it on. Otherwise, you can at least put a file together and ask a solicitor to meet with you for an hour or so to go through the potential issues and costs. 

mf


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## redstar (8 Jul 2008)

Thanks for the info mf1.

You've confirmed my suspicions  about cost/time/effort etc   - good to hear it from a legal expert.

After 7 years of excuses, the RA are very frustrated at the impotence of the Council to enforce their own planning regulations. They always stop short of seeking a Court order. The Enforcement order deadline came and went without any repercussions for the developer, as court proceedings were supposed to follow.
This never happened.

If a Court Order was issued and he did not comply, what happens ?   Other than bad publicity, what sanctions are available to either make him finish the estate or pay for someone else to finish it ?

Our RA is quite small and none of us are solicitors.


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## mf1 (8 Jul 2008)

I think my first step would be to start with the Council - lobby everyone you can think of, every Councillor, every local TD, build a file of letters, get a newspaper involved if you can, get onto Joe Duffy - I hate the programme but the publicity is very effective............

If you do go the road of a Court application, ( and I can hear the fear!!!!), if he does not care, then unfortunately , I suspect enforcement procedures won't make him. 

BUT - does he have money? What about getting the works completed and suing him for the costs of so doing and winding him up if he does not pay? ( I assume it is a company? ). This is very risky as he/limited company may wind up anyway - either because of this or, quite likely in current climate, because no funds to pay his creditors. 

It would be worth your while to consider costing the works. Would it be ultimately more worthwhile to get the works done and the estate taken in charge? Even if you never recover the money? 

mf


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## redstar (8 Jul 2008)

Costing the works first is a good idea. At least we'll know the scale of the job.

To date we have hammered away at the Council, and councillors (the subject even caused a row in a council meeting !), local TD (who is also a Minister) etc ..

We also have a file of details, maps, letters.

The developers latest claim is that he has no money to finish the works, despite owning the local pub, some bungalows, and apartments elsewhere , and has just sold some land nearby with full pp which he obtained despite not completing the existing estate. Residents objections were overruled.

A few ideas here to mull over. I'll put them to the R A. Thanks again.


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## mf1 (8 Jul 2008)

"The developers latest claim is that he has no money to finish the works, despite owning the local pub, some bungalows, and apartments elsewhere , and has just sold some land nearby with full pp which he obtained despite not completing the existing estate. Residents objections were overruled."

Just to clarify one thing - who or what is the legal entity of the developer? 

Is it John Smith? Or is it John Smith Limited?

This is important - in law, an individual, in his own right,  and a limited company, run by the individual  are two very separate legal persona. 

mf


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## redstar (8 Jul 2008)

The name of the entity is   "A.N Other & Associates".  No 'ltd 'or 'limited' in the name.


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## mf1 (8 Jul 2008)

You seriously need to find out. 
Do a Companies Office search, check the phone book and , most important, find out what legal entity sold you the house. Its on your Deeds. 

mf


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## Guest117 (8 Jul 2008)

MF1

 Does the council not hold a bond from developers and if yes - what chance do the residents have to access these funds to complete the outstanding works ?


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## yob (8 Jul 2008)

Hi redstar,
i have to agree with mf1,if you can avoid this process do,its just not worth it,
i faught my case for nearly eight years and still didn't get anywhere,do the costings and see if the resedants group can do the work,believe me you'll be better off.
we where actually in a very dangerous situation,i got health and safety down to do an inspection,and was told there shouldn't be any resedants as it was deemed as still being a site,and as such there where no laws to protect us,and there was nothing he could do.
now he did make the developer do certain things but only because of workers rights,even though they were gone.
the road your going down would be a civil case,thats expensive,and if it where to go against you,wow.be careful out there.


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## mf1 (8 Jul 2008)

badge55 said:


> MF1
> 
> Does the council not hold a bond from developers and if yes - what chance do the residents have to access these funds to complete the outstanding works ?




I don't know. OP would need to check their planning permission. And take further advices.

mf


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## FranceRes (8 Jul 2008)

badge55 said:


> MF1
> 
> Does the council not hold a bond from developers and if yes - what chance do the residents have to access these funds to complete the outstanding works ?


 
There appears to be dodgy stuff going on between the councils and developers with regard to bonds.

Our developer has still not finished our estate almost 9 years later and quite frankly doesn't give a toss because the council allowed him to move/transfer his bond to another development, even though he clearly hadn't finished our estate and the council were well aware of the fact.

In the meantime, we are obliged to pay for the upkeep and maintenance of the estate while he has been allowed to move on to bigger and better things. 

Developers should be forced to finish estates within a specified period and should they fail to comply, the funds should be taken from their bond to carry out the necessary work.  This should include fees for grass cutting and maintenance of commom areas, which won't be taken over by the council until the estate is completed and handed over.


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## redstar (8 Jul 2008)

mf1 said:


> You seriously need to find out.
> Do a Companies Office search, check the phone book and , most important, find out what legal entity sold you the house. Its on your Deeds.
> 
> mf



According to CRO, he is listed under  'business name' as 'A. N Other & Associates' along with address   (obviously ANOther is not his real name here, but it is a named individual).

I bought the house from the a previous resident.

Regarding the bond, yes, the council do have monies but I don't  know if the RA could access it. Thats an option worth trying. Usually, the Council completes the work and uses the bond to pay for it. Theres no sign of the council even wanting to do that either.

We'll try and get hold of the original PP too.


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## bond-007 (8 Jul 2008)

You need to see the business name cert to see if the business name is owned by a limited company. You can download the cert for free from the CRO website.


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## DeclanP (9 Jul 2008)

It should be possible for the local authority to issue an enforcement notice on the developer for failing to comply with the conditions of planning. I saw something similar coming before the local courts last week when a road to a new estate was not completed. The developer was not long agreeing to have the works carried out. Maybe mf1 might have a view on such action.


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## bond-007 (9 Jul 2008)

I think the issue is that the council do not have the will to do so. I don't know if it is possible for a private citizen to take him to court for non compliance.


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## redstar (9 Jul 2008)

DeclanP said:


> It should be possible for the local authority to issue an enforcement notice on the developer for failing to comply with the conditions of planning. I saw something similar coming before the local courts last week when a road to a new estate was not completed. The developer was not long agreeing to have the works carried out. Maybe mf1 might have a view on such action.



The council has already issued an Enforcement Notice. The developer has ignored it, with some more excuses. The council took no further action against him. The Enforcement Notice was just an empty threat from an impotent council


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## Guest117 (9 Jul 2008)

mf1 said:


> I think my first step would be to start with the Council - lobby everyone you can think of, every Councillor, every local TD, build a file of letters, get a newspaper involved if you can, get onto Joe Duffy - I hate the programme but the publicity is very effective............


 
I agree with MF1 - I think the loads of registered letters and Joe Duffy route might be the best way to get a result - and won't risk much money.

Try to follow up the bond issue and the lack of enforcement etc with council in registered letters and in a couple of months armed with presumably lame replies ( or none at all ) try to get Joe to expose the complete lack of action by the useless gimps that are your local co council

I know several instances where ( several years on ) co councils haven't collected development levies, rates etc. - If they cannot even collect the money they are due then what likelihood of them doing the rest of the job properly?

Good luck i don't envy you this task


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## TheRed (9 Jul 2008)

1. Complain to ombudsman
2. Look at Gormley's circular "taking in charge" - local authority must consider apps to take in charge notwithstanding enforcement issues where the majority of registered voters living in the estate request it (suggest plebiscite)
3. Lobby. Go throught planning app file, warning letter, enforcement notice and pick out inconsistencies etc. Have timeframes passed.
4. Often coz of loosely worded conditions, developer will have up to 5 years from date of planning permission to complete - only after this can effective enforcement be taken (for period of 7 years following the 5 year period)
5. Demand meeting Director of Planning, Senior Exec Officer, talk to your councillors
6. Publish local newspaper
7. Only legal aciton you can take under planning legistlation is to apply for injunction (high court coz of value of estate) v costly, probably unsuitable for you, have to establish that breach must be remedied urgently (ie traffic hazard from developer's failure to finish out estate means beach must be remedied urgently)


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## TheRed (9 Jul 2008)

Have a look at Garret Simons' "Planning and Development", is excellent, make sure you examine everything that's supposed to be on the planning register eg whether the enforcment notice has been complied with. If you can't face becoming an expert in this area by reading law books, going through dusty local authority files, hire a planning consultant to pursue it for you (could split costs with yoru neighbours)


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## redstar (9 Jul 2008)

Appreciate all the advice, guys. Thanks.

I think we'll try to pressure the council in various ways ...
o ask CoCo to take-in-charge, with regard to Gormleys latest planning guidelines
o Get a costing for the outstanding works
o Review the planning details
o try to find out what has happened to the bond, and try to get hold of it to pay for completion of works. 
o Use Lobbying and publicity !

Hopefully the council might then start pressuring the developer to take the heat off themselves.


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## TheRed (9 Jul 2008)

-Don't forget to complain to ombudsman, they frequently get stuck into the manner in which Local PLanning Authorities deal with planning enforcement complaints.

-Don't accept enforcement issues as reason why Council can't take in charge. I know of estates (known as legacy estates) where there have been numerous enforcment issues, bond has expired and been returned to developer and because of pressure from residents, Council has taken estate in charge and completed works.

- Council aren't impotent, although it's at their discretion to take to court (usually district) if it's clear that a breach of planning law has taken place, if they can present evidence to the court of the breach, if the developer hasn't complied with enforcement notice, if developer has been uncooperative etc then no good reason not to prosecute.


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## DeclanP (10 Jul 2008)

Still think that the local authority has a major part to play in this. It is in their interest to ensure the developer completes the estate rather than they taking it in charge. An enforcement notice, if heard by the district court, has to be complied with. If not, then pressure should be put on the local authority by public representatives rather than residents going to the cost of fighting a legal battle which wasn't their making.


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## AKA (26 Jul 2008)

There are lots of routes - all time consuming though - I agree with MF1 - it's very draining and we're trying not to let it consume our Residents Association.  I'd nearly pay double the fee not to have to deal with any of it   But someone has to and having a poor agent that does very little for a lot of money in many developments I know is annoying.  And then there's the people who won't pay the fees - management fees, gardening fees, anything really - they have been issued solicitors letters - I'm thankful the agent deals with this part - even though they do it poorly as with everything else.  I doubt you would elicit much money from the community to take a court case - we've an active community thanks to some very active residents with a lot of energy.

We are experiencing similiar issues and the council don't even respond to emails at all - 3 emails so far.  Dept. of Enviro & Local Government suggested going to the County Manager if you don't get a response.  Who has the time to be writing letters and phoning the council if they can't reply to a simple email or route it to the correct person.

The Enforcement Officers are useless - again they don't even reply to emails.  And we are just looking for the draft taking in charge policy.  The Minister for DoeLG said in correspondence that all they would be doing is asking each council if it had the draft policy in place and giving them a slap on the wrist if not.  As there is no legislation in the area there's not much that can be done. 

I'm not sure what remit the Ombudsman has but this is one of the easier routes that we'll be looking at.

http://www.irishtimes.com/newspaper/opinion/2008/0711/1215677263260.html

We will approach the Ombudsman in relation to the council not taking the estate in charge in a reasonable amount of time i.e. less than a decade.  There's estates in the area that have not been taken in charge in this time.

In relation to the developer bonds - this is interesting to hear they are moving the bond onto another development.  I wouldn't be surprised.  I've heard from engineers that the bond is often not half enough to carry out remedial work.  Have a look a Monaghan County Council's taking in charge policy - you can see the high standard that's required: www.*monaghan*.ie/websitev2/download/doc/waterservices/2007/*Taking*in*Charge**Policy*.doc

Our estate is no where near this.  The developers shouldn't be allowed to start a new phase without the first phases being complete to taking in charge standard.  

I'm looking forward to next year's local elections already. Local councillors didn't even know there were management companies in the county at recent meetings we've attended.


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## ASFKAP (30 Aug 2008)

My friend found himself in a similar situation with a developer that was unwilling to finish their estate, the developer also seemed to have friends in high places (seen drinking with the officials from the local planning dept most lunchtimes in a local pub, well known FF supporter), enforcement notices went ignored, as did correspondance and requests for meetings etc, they were advised against taking it through the courts because of the costs involved, and were also advised that the 'best thing' to do would be to forget it and just pay for the outstanding work themselves.
In the end what they did was produce a leaflet (more like a booklet really) outlining all their problems and the lack of response etc etc, and the every weekend the RA would 'swamp ' the developers showhouses on other developments and pass them to potential buyers and warn anyone interested in buying one of his houses what problems they were likely to encounter. They would cram themselves into the the houses making it difficult for potential buyers to have a look round. Whilst in there they would talk loudly amongst themselves about how small the rooms/gardens  were, how badly finished the buildings seemed to be, how thin the walls were etc etc. It only took about four weeks before he sat down with the RA and promised to deal with the outstanding issues....


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## Complainer (31 Aug 2008)

ASFKAP said:


> the developer also seemed to have friends in high places (seen drinking with the officials from the local planning dept most lunchtimes in a local pub, well known FF supporter),



There's a great reason to start photographing the developer and the officials and publish the photos on the web each day - there should be no comment with the photos other than a list of the names involved, but no comment is necessary.


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## AKA (7 Sep 2008)

ASFKAP said:


> My friend found himself in a similar situation with a developer that was unwilling to finish their estate, the developer also seemed to have friends in high places (seen drinking with the officials from the local planning dept most lunchtimes in a local pub, well known FF supporter), enforcement notices went ignored, as did correspondance and requests for meetings etc, they were advised against taking it through the courts because of the costs involved, and were also advised that the 'best thing' to do would be to forget it and just pay for the outstanding work themselves.
> In the end what they did was produce a leaflet (more like a booklet really) outlining all their problems and the lack of response etc etc, and the every weekend the RA would 'swamp ' the developers showhouses on other developments and pass them to potential buyers and warn anyone interested in buying one of his houses what problems they were likely to encounter. They would cram themselves into the the houses making it difficult for potential buyers to have a look round. Whilst in there they would talk loudly amongst themselves about how small the rooms/gardens were, how badly finished the buildings seemed to be, how thin the walls were etc etc. It only took about four weeks before he sat down with the RA and promised to deal with the outstanding issues....


 
Interesting - have thought about this but wondering what the legal implications are?  In current climate I don't think there are many people viewing houses but they'll won't sell houses in future phases unless they finish the estate.  

But what is finishing the estate?  We need it finished to the standard required by the council - and the council don't seem willing to even give us information in relation to their TIC policy or even get the process started.


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## bond-007 (7 Sep 2008)

Make a Freedom of Information request to the council to obtain their TIC policy and procedures.


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