# Planning query re non exempt developments



## phlux (25 Jan 2011)

Hi,

I am hoping that someone may have knowledge regarding a planning issue we have and could offer some insight. 

We have gone sale agreed on a property. We got a Survey carried out by an Engineer who advised in the report that we get confirmation that some add-on's have the correct planning in place. (kitchen extension, porch, utility room, external toilet). Our solicitor send this to the vendors solicitor and they employed an architcht to insepect the property. 
After a number of weeks the report came back to our solicitor stating that some of the developments were exempt and some not considered to be exempt. The structures that are not exempt were constructed prior to 2000 so therefore are safe from threat of enforcement, however, our Solicitor advised us that we will need to get these non exempted developments corrected, either by retention or else knocking them down.

We have responded to the EA advising of the issue and gave them the option to seek retention or else we would continue with the sale but would require a discount on the price to cover the cost of us having to knock them down and possibly apply for planning to rebuild. 

The EA have come back to us saying that the Vendors are very unhappy with this and seem to think we are causing trouble. 

We want the house and preferably without having to knock any of the buildings but just want to make sure that all is legit. 

Would appreciate the opinion of anyone with knowledge/expericence with this type of scenario. 

Thanks in advance


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## onq (25 Jan 2011)

You seem to've done everything correctly so far - carry on! 

Why should you carry the risk of others unlawful developments?
To add fuel to that fire, you should request them to obtain the permission.
The permission should be a coverall permission for the entire holding, not just the "bits".

This leaves you with a clean Opinion and consequently clean sell-on, when you in your turn sell this property.
You should then request Opinions of Compliance with Planning Permission and Building Regulations on the entire.
They will hugely resist this, because most architecs will not want to issue the latter for work that they have not seen to site.

In relation to the permissions required, permitted development not built in compliance can be enforced up to twelve years after completion.

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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## mf1 (25 Jan 2011)

A word of advice. The day you buy is the day you sell. And the vendors have not done things by the book and those things need to be corrected. Either by them. Or by you if you intend to buy. When you go to sell, your purchasers will want things right. 

Non exempt developments may not carry the risk of enforcement if they have been constructed for more than (5/7? years) and no enforcement notices have been served but it does not make them planning compliant. Your vendors may now realise this but do not want the expense of correcting the issue. 

As onq says : "You seem to've done everything correctly thus far - carry on"

mf


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## Superman (26 Jan 2011)

mf1: 7 years.


While it is correct to say that some of the non-compliant stuff is not permitted development as such, the consequences that I am aware of are only that if the house were compulsorily purchased, the extra extensions wouldn't be counted in valuing the house.

I am not aware of any other possible consequence to the non-permitted development in this instance.

The issue of it reducing the value of the property seems to be a minor issue - I seriously doubt the local authority would refuse to grant permission to regularise the property - though it may be worth talking to the local planner.

If it were me: I would seek to get as much money reduced from the seller on the basis of this "defect" as possible [at least €1k for the cost of making a retention permission] - and apply for retention permission.


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## Docarch (26 Jan 2011)

Superman said:


> I would seek to get as much money reduced from the seller on the basis of this "defect" as possible [at least €1k for the cost of making a retention permission] - and apply for retention permission.


 
This is not your problem - let the vendor sort it out. 

If the vendor does not want to sort it out and/or you decide to proceed with the purcahse as is, I'd be seeking a lot more than E1K! 

What happens if retention permission is refused? I would be suggesting to the vendor that if they do not want to sort it out thay need to allow you the cost of a retention application (which may be a lot more than E1K). The possible costs associated with a planning appeal. And, the possible costs associated with demolishing and removing the structures if retention permission is not granted.  While this eventual outcome seems (very) unlikely, there is always a risk.  

I'd be suggesting E10K (min) - let the vendor then decide. 

Just bear in mind that if you are borrowing money and the bank/lending institution get a whiff of planning irregularities (essentially the title of the property is impaired) no money will be forthcoming until the issue is regularised.


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## phlux (26 Jan 2011)

*Re - Planning query re non exempt developments*

Thank you for all your replies. 

The house is quite old (1950’s) and although we don’t have a date for the add on’s they are very old also so we know the structures won’t be enforced. 

I suppose our query is what are the consequences of the ‘non exempted’ structures. 

From reading your responses, it looks like our main issue will be encountering this same issue when/if we want to sell. 

We are happy to knock the coal shed leaving 3 non-exempt items. The external toilet we want to keep as we don’t have a downstairs toilet but down the line, when we can afford it (a good 10 years), we would plan on knocking this and extending to incorporate a toilet - so I suppose this will resolve the toilet issue. 

The utility room we want to keep as it’s useful for washing machine/drier etc. And the Porch we obviously don’t want to knock, so I suppose we have 2 non-emempt items that will cause us problems if we want to sell. 

As you say Docarch, we also have the worry that the bank will not lend us the money with these irregularities. Our solicitor has advised that we may need to see if they will put in a clause to say that we will knock the toilet and utility and hopefully they will not see the porch as an issue as it’s minor. 

So from my take on it our options are – 

          Ask the Vendor to resolve the issue – From the response we have got so far I don’t think this will happen. 

          Buy as is and apply for retention (this will cost – at minimum for the planning application but could result in having to knock and possibly apply to rebuild). We would therefore expect a discount in line with the expense we will have to undertake. Unfortunately it looks like they may not budge on this. I don’t think they understand that the ‘non-emempt’ developments are a real issue. 

I’d appreciate if you could advise if I have this straight. 
Thanks so much for your assistance


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## Blackmiller (31 Jan 2011)

Hi Phlux

Yes, you are generally on the right track, but just a few other things to bear in mind.

The particular parts of the house that you have been advised are exempted dev. / not exempted are important. It may be worthwhile getting the opinion of a planning consultant (Irish Planning Insitute or Royal Town Planning Institute member). What was done and when is crucial as the Planning & Development Regulations have changed over the years and as such the same works done at a different time will have different status. Also, make sure you get evidence of what was done and when (reciepts etc.).

With regard to seeking planning permission, also bear in mind that even if you get the P.P. there will nearly always be conditions attached. The Planning Authority may seek substantial changes to things such as drainage, energy etc which can be very costly. Other buyers may seek evidence of compliance with the conditions of any P.P.

Also bear in mind the implications of any parts of the house that do not have full P.P. on the insurance of the house. I have no expertise in this area, but have heard of situations where insurance companies have not paid out fully on cliams (say the house burns down or is flooded) on the parts of the house that didn't have P.P. 

Also, as was mentioned, banks may not lend and solicitors may not sign off on development that has not been regularised. During the boom they often did as the banks were getting so much from the mortgages, but now that peoples wallets are under pressure ...

The issue here is risk. Of course they don't want to budge - why would they if they sense you are keen to buy. But they should take all the risk, particularly with prices falling. Ask too why has P.P. not been sought already? Have they spoken with the Planning Authority themselves? As others have said, after 7 years the Council cannot initiate enforcement proceedings but it is still not legal. You should check the planning register and talk to the Council yourself and see if there have been planning applications lodged at the site or if any pre-planning consultation has taken place. 

You could always buy it pending planning permission and make sure this is in black and white in the contract. If you decide to take the risk of buying without it being regularised, at the very least the asking price should be discounted to cover the risk of any losses arising from the planning process, insurance claims, etc. 

You are in a much better position than them. Your house is the biggest investment that most people make so always err on the side of caution, by testing against the worse case scenario.

All the best


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## onq (1 Feb 2011)

Phlux,

Just to clarify, the 7 year limit applies if they were built without any permission, but its 12 ears if they were built incorrectly on foot of a permission - 5yrs Planning + 7yrs Enforcement.
So if its been more than 7 (12) years since completion of the extensions and  there were no enforcement actions taken against them another possibility  arises.

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

A registered architect may be in a position to offer a letter of comfort in relation to the extensions.
Your solicitorand/or your inspecting architect should check the planning and enforcement files.

The RIAI may in fact publish a formalised Opinion wording which could suit or be amended.
However you or the archtiect involved should check copyright issues beforehand.
The wording should state the reasons enforcement action cannot be pursued.

Your solicitor/inspecting architect should check the P.I. of the certifier.
This is an unusual type of certificate and may need special cover.

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

I have also checked with our local authority and the enforcement section have confirmed that a Section 5 Declaration is not appropriate in this instance.
The local authorityDeclaration can state that the extensions are exempt - i.e. in accordance with the Exempted Development Schedule - or not.
The local aurhority [well, mine at least...] will not issue a Declaration stating that it cannot come after you in law due to elapsed time.

Regardless of this and as has been noted above, the only way to actually regularise the matter under the Planning Acts is to seek permission.
You *could* bear this risk if you have a favourable discussion with the planning officer before you buy based on your legal interest.
However I am still loath to suggest that you *should* bear this risk - this should be addressed by the Vendor.

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

Whatever is agreed, you need to take competent legal and planning advice beforehand.
Oh, and please do let us know how this is resolved, one way or the other.

FWIW

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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## Blackmiller (2 Feb 2011)

Hi Phlux

It is a side point to whether you buy or not, but just so that you are armed with the correct information it is actually only 7 years - (in all circumstances, except where something might be a danger to the public, say for traffic reasons) - that enforcement action can be taken against infringing development (157-5 of the 2000 Act - '... from the date on which the offence concerned was alleged to have been committed.'). The 5 years relates to the normal life of a permission and is counted from the final grant date. The 7 is from the date of infringement. The two clocks are entirely seperate and would run concurrently.


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## onq (2 Feb 2011)

Blackmiller,

My understanding is somewhat different to yours.

Developers have five years in which to build following a Grant of Permission.
If they build within that time, but do not build in accordance with the permission, the Council has seven years in which to act from the date of the offence.
These time periods must run consecutively, not concurrently, since an offence must occur before enforecement can commence.

For example say a house is commenced in Year Two of the Grant of Permission and completed in Year Four.
If it is not in compliance with the permission, the Council have a further Seven Years in which to act.
The time period which must elapse after which the Council cannot take action is Eleven Years.

Could I ask you to check my comments on this matter and revert?

TIA


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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## Blackmiller (2 Feb 2011)

Hi onq

I see what you mean in your last example about those two timeframes running consecutively. (I should have said MAY run concurrently.) However, the two processes and timeframes always run separately. The issue is enforcement following an infringement. The clock for enforcement starts at an infringement, regardless and entirely separate to the life of any permission. 

Enforcement may be required where no permission at all was sought or during a build, prior to completion etc. Section 157/5 provides a cut off for all circumstances. 

(A question may arise as to when did the infringement start / what is considered to be the infringement, say in a large, complex or prolonged build, but it will still be 7 years from the infringement.) 

Let’s say a 10 year permission is granted and is fully built out in year 1. If enforcement is required it is still 7 years from the date of the infringement. Say an infringement occurred in year 1 and enforcement was sought in the 9th year since the grant, no enforcement could proceed. However, if enforcement started within 7 years of the year 1 infringement, and the developer then had to make changes on foot of the enforcement, he would be entitled to make those changes under the original permission, which would still stand. In any example under Section 157-5 it is always 7 years within which an infringement can be enforced. 

It is not a question of ‘a further 7’; it’s always only 7 within which enforcement can be started. In your example, it may have been 11 years since the grant, but that is purely incidental. If an infringement is not dealt with by enforcement within 7 years, the permission is irrelevant to the potential to start enforcement. 

Message me if you want, we’ll try and keep this focused on phlux.


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## onq (2 Feb 2011)

Hi Blackmillar,

It seems we're not so far apart as it had seemed at one point. 

And this remains focussed on Phlux.

The primary concern in relation to enforcement action is whether it can still be taken.

If you review my last few posts in this light you can see they are intended to explore the maximum length of time within which enforcement can commence.

In the worst case, so long as the unauthorised and non-exempted works were completed more than 12 year ago, the Council cannot now ommence enforcement action.

The one bug bear in this scenario is if the Council had already commenced enforcement action.

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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