Case study condition on building permission

[jtk]

Hi guys,
your views on the following would be much appreciated, tia.

Property is an EoT bungalow in a quiet residential laneway on the edge of a town.

In 1999 the owner (an elderly lady), signed over a piece of land to the side of the bungalow to her son & wife so that he could build an attached bungalow, with the intention that he & his wife would live there. FP was granted, said bungalow was built & they have lived there ever since.

Each property has separate gas; electric; phones; water; Property Tax & eircodes.

Now, when the mother applied for FP in 1999 it was granted, BUT there was a Condition
"The existing dwelling & proposed ancillary dwelling shall be jointly occupied as a single unit & shall not be sold, let or otherwise be transferred or conveyed save as part of the dwelling."

My questions are -
Does this stand for all time? or is it waived after a number of years? or can the son & wife apply to have this clause removed?

Any comments are much appreciated.
Jtk

 

[cremeegg]

I was down a similar road some years ago.

A condition never expires.

Construction without planning will not be acted against after 5 years.

While you see this as a breach of a condition, you could argue that the connection of a separate electricity was construction without planning and not a breach of a condition. I argued this successfully with my co co. The council agreed that the could not proceed against me.

It depends what you want to achieve. If they wish to occupy the second property without fear of enforcement action. I think they can. If they want to sell the second property separately from the first I think that would be difficult. No buyer will come into a situation like this.

Is the second property on a separate folio.

 

[jtk]

thanks for your reply.

"Construction without planning will not be acted against after 5 years."
Just to be clear, the FPP was granted before any building was started, but with the aforesaid condition in the schedule, so I don't this would apply anyway, or am I mistaken?

The son & wife have occupied the 2nd property since 2000, with the mother living in her original property next door. Son & wife are worried about three potential scenarios:

1) the mother may need to go into a nursing home, or move in with her daughter, in either case she needs to sell her home to pay for the nursing home care or give her daughter some money (very likely)

2) the son & wife want to sell their property (this is not really likely but possible)

3) the mother dies (in her will her property is left jointly to son & daughter)

Yes, the two properties have their own separate folio numbers.

 

[kceire]

The son and wife live in a granny flat. It doesn't sound like they got permission for a standalone unit, but an extension.
The granny flat is essentially another name for ancillary family accommodation which is another name for an extension.

The extension is essentially part of the main house and when it cease to be used as a granny flat it refers back to been part of the main house.

You can apply for planning to subdivide but both units will then need to comply with the housing standards of infill housing which means adequate private open space, off street parking etc

 

[cremeegg]

thanks for your reply.

"Construction without planning will not be acted against after 5 years."
Just to be clear, the FPP was granted before any building was started, but with the aforesaid condition in the schedule, so I don't this would apply anyway, or am I mistaken?

It is not a matter of being mistaken, rather what is the correct or most advantageous interpretation of the facts.

You had permission to build a bungalow, with the condition that it only be occupied as a single dwelling with the original.

You used it as a separate welling, that seems like a breach of the condition. Conditions last forever, at any point the council could enforce the condition against you. In my case they started enforcement against me because a neighbour complained.

I successfully argued that what I had done was not a breach of the condition, but rather a construction of a separate dwelling without permission. I based this on the fact that I had installed a separate electricity connection more than 5 years before the council contacted me.

I was successful to the extent that the council wrote to me and said "the details submitted are considered acceptable to the planning authority and enforcement proceedings have been discontinued"

The son & wife have occupied the 2nd property since 2000, with the mother living in her original property next door. Son & wife are worried about three potential scenarios:

1) the mother may need to go into a nursing home, or move in with her daughter, in either case she needs to sell her home to pay for the nursing home care or give her daughter some money (very likely)

2) the son & wife want to sell their property (this is not really likely but possible)

3) the mother dies (in her will her property is left jointly to son & daughter)

Yes, the two properties have their own separate folio numbers.

Whose name is on the folio for the new property

 

[jtk]

The son and wife live in a granny flat. It doesn't sound like they got permission for a standalone unit, but an extension.

Yes I can see that & agree with you on this point

You can apply for planning to subdivide but both units will then need to comply with the housing standards of infill housing which means adequate private open space, off street parking etc

The back garden isn't divided up - it's a large space & both back doors open onto a shared patio, but the garden/patio could easily be divided with a low fence or wall.
The driveway is large, easily takes 6 cars (carefully parked) & could be divided with each having their own entrance.

The son & wife's names have been on the new folio from the start.

I successfully argued that what I had done was not a breach of the condition, but rather a construction of a separate dwelling without permission. I based this on the fact that I had installed a separate electricity connection more than 5 years before the council contacted me.

Very interested in this, given that the son & wife have been living there since 2000, I asked how they got on with neighbors & they tell me everyone's extremely happy, friendly & nobody has any issues with them or anyone else. The other residents are mainly elderly & the son + wife are very helpful to many of them.

 

[cremeegg]

Having read over the original post again. I misunderstood the first time I read it. The mother got PP with the condition that the new build could not be separately sold. Then she transferred to son. Well that would seem to be a breach of the condition there before anything was built. Of course that was 18 years ago and is unlikely to be challenged now.

1) the mother may need to go into a nursing home, or move in with her daughter, in either case she needs to sell her home to pay for the nursing home care or give her daughter some money (very likely)

I see no issue here. The original property does not seem to have any issue. It could be sold, or put in fair deal.

2) the son & wife want to sell their property (this is not really likely but possible)

I can see this as a real problem. Viewed as a separate dwelling, it has no planning. They could probably apply for retention.

3) the mother dies (in her will her property is left jointly to son & daughter)

Same as 1, I see no issue here.

 

[jtk]

Yes, Cremeegg, you're absolutely right that's exactly what happened, Mother applied & got FPP, then transferred to son, who then started building. Son only found out about the clause many years later.

So, if I understand you correctly, the mother could sell her house, BUT where would that leave the son? or do you mean the whole site would have to be sold as one in the Mother's name? If the whole site has to be sold, would the daughter have any claim to half the value of the 2nd property?

If the mother passes away & has left her house jointly to her son & daughter, has the daughter any claim to the 2nd house? This is the son's main worry. The son hasn't the money to buy the daughter out.

I can see this as a real problem. Viewed as a separate dwelling, it has no planning. They could probably apply for retention.

Don't know what Retention is? how, where would I find out about it?

What, in your opinion, would be the best way to proceed, given that the mother is in her 90s & the son wishes to get this resolved, hoping that his sister doesn't get the benifit of all his hard work maintaining both properties over the last 18/19 years.

 

[cremeegg]

I think that proper professional advice is needed here.

In my opinion there seems to be no issue with the original house. PP was applied for but then she gave the site to the son. I don't see why the whole site would have to be sold as one. If the mother signed over the land the new house is built on then the old house could be sold, and the daughter could inherit a share in the old house. No effect on the new house.

The issue is with the new house. It has no planning permission. That is not as uncommon as you might think. It is only really a problem when you want to sell.

Retention is where you apply for planning for something that is already built. If you get it great, if you don't get it, then I dont know if you are any worse off.

A planning consultant in the local area or maybe a county councillor should be able to advise is you are likely to get retention.

 

[newtothis]

Retention is where you apply for planning for something that is already built. If you get it great, if you don't get it, then I dont know if you are any worse off.

You could be worse off if you don't get it: the worst case is you'll have to demolish whatever was built. This can and does happen.

A planning consultant in the local area or maybe a county councillor should be able to advise is you are likely to get retention.

I think the best thing to do is to get professional advice (which is not available from a county councillor by the way, unless they're also qualified in a relevant field).

My inclination would be to sort this out now whilst you have the opportunity, as my guess is it will take some time which you probably won't have if you're forced to sort it out by a possible change in circumstances.

 

[Leo]

The driveway is large, easily takes 6 cars (carefully parked) & could be divided with each having their own entrance.

That woulds require planning, and going down that road would likely require the property be brought back into line with permissions granted.

 

[kceire]

I would like to see the wording of the original planning application OP if you can PM me the address or scan the grant over to me.

The condition that’s attached to this is usually reserved for domestic extensions and granny flat extensions, not standalone units.

Going by this single piece of information, I would say that the ‘bungalow’ was always an extension and never unit in its own merit. Separate connections to utilities is not a issue here as you can get that done on all granny flat extensions here in dublin too.

Somebody needs to read the original planning app, study the drawings and compare to what’s on site.

Then and only then, can proper advice be given.

Where are you based?

 

[corco2000]

Creme gg. ...Im just trying to fully understand what you did previously in regard to separate dwelling....because you had seperate services to another dwelling on or attached to your principal dwelling you claimed fpp didn't apply and so you didn't stick to conditions.
Was your building up more than 5/7yrs before you applied for fpp. And which co.co
Was it.
Thanks