Following our telephone conversation last Thursday the 3rd October regarding allegations of potential unauthorised development (development without planning permission or development with planning permission which is not in compliance). Such allegations may or may not be dealt with by local authorities by way of enforcement action. Section 152 of the Planning & Development Act, 2000 allows a representation be made to a planning authority regarding such development.
I would like to firstly advise you about the limitations and role of this Office when examining complaints about planning enforcement.
The Ombudsman is not empowered to compel a local authority to make a specific decision or take a specific course of action, which includes any decision whether or not to take enforcement action. The role of this Office is to examine the administrative actions of the Council in investigating the complaint of unauthorised development. The function of the Ombudsman is to examine whether the Council has used its discretion in a reasonable manner.
Local authorities have discretion about whether or not to take enforcement action in any given situation. They will only initiate proceedings if they consider that they have a reasonable chance of succeeding in court. In their view, it would be a waste of public money pursuing action where the chances of success are not good.
A local authority investigating complaints of unauthorised development is under no obligation to provide the person making the complaint with updates about the progress of the investigation, with the exception of the statutory requirement to provide the person making the complaint with copies of any Warning Letter or Enforcement Notices issued in connection with the unauthorised development. It is standard practice for all local authorities not to divulge details about the progress of a complaint of unauthorised development, especially where any information disclosed has the potential to jeopardise any future Court proceedings.
In coming to any conclusion on a case, this Office is conscious that the weight which a court will attach to any particular factor will vary with the circumstances of each individual case. At the end of the day, the court is engaged in a balancing process, attempting to balance the rights and interests of each of the three parties to the planning process, namely the developer, the planning authority and the public, including the complainant. You should also be aware that there are strict time limits set out in Section 156(4) of the Act regarding the prosecution of offences for unauthorised development e.g. within 7 years if no planning permission and within 7 years of the expiration of planning permission in the case of development where there was planning permission.
I would also like to point out that the Supreme Court has held (Kenny and Dublin City Council) that few developments are built exactly in accordance with the planning permission granted. Mr Justice Fennelly said "To begin with, some simple matters of common sense need to be mentioned concerning planning permissions. There will inevitably be small departures from some or even many of the plans and drawings in every development. There can be discrepancies between and within plans, drawings, specifications and measurements; there can be ambiguities and gaps. It seems improbable that any development is ever carried into effect in exact and literal compliance with the terms of the plans and drawings lodged. If there are departures from the terms of a permission, there are enforcement procedures. However, planning laws are not intended to make life impossible for developers, for those executing works such as architects, engineers or contractors or for the planning authorities in supervising them. Nor are they there to encourage fine-tooth combing or nit-picking scrutiny of the works."
The Planning and Development Act, 2000, Section 152, 153 & 154 sets out the administrative steps which must be taken on receipt of a complaint of unauthorised development. I would like to draw your attention to Section 160 of the Planning and Development Act, 2000 which provides as follows:
"where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary."...
What this means is that Planning Authority is not, therefore, the only entity with enforcement powers regarding possible breaches of the planning law and it is open to you, if are not satisfied with the Council's adopted position, to take enforcement action yourself in relation to the development.
I hope this provides clarification in relation to planning enforcement.
Yours sincerely
Bernard Traynor
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