A Guide to Planning Enforcement:
Powers in relation to Planning Enforcement are derived from Part 8 of the Planning and Development Act 2000 (‘the Act’). In order to be of assistance some frequently asked questions in relation to enforcement are answered below:
FREQUENTLY ASKED QUESTIONS:
1.What is unauthorised development?
2.How can I make a complaint?
3.Will my complaint be kept confidential?
4.What is the procedure that is followed?
5.What are the penalties for breach of planning laws?
6.Can I apply for retention of my unauthorised development?
7.Which issues does Planning Enforcement not deal with?
8.Are there occasions when a complaint/ issue will not be pursued?
1. What is unauthorised development?
Generally, unauthorised development falls into 3 categories:
- Planning permission is required for a development but has not been obtained.
- Non-compliance with a planning permission i.e. that a development is not carried out in accordance with the plans and particulars of the permitted development.
- The works or use being carried out is in breach of the Planning Regulations. Planning Regulations outline developments which are exempt from planning permission. If the proposed exempt development is not carried out in accordance with the specified conditions and limitations, it is no longer exempt and becomes an unauthorised development. http://www.environ.ie/en/Legislation/DevelopmentandHousing/Planning/FileDownLoad,8797,en.pdf
Searches and details of planning permissions may be checked on the Planning Enquiry System;
2. How can I make a complaint?
You can make a complaint by completing Enforcement Complaint Form (see below) and posting it to us at the Planning Directorate, Cork City Council, City Hall, Cork.
This form includes two pages, both of which are to be completed. Please ensure to fill out as much detail as you can. You can also attach photographs (to be dated) if you wish. All forms must be signed by the complainant and an address provided for correspondence.
3. Will my complaint be kept confidential?
It is our policy to keep the name of the complainant confidential both during the course of any enforcement proceedings and afterwards when the case is completed. However this information is subject to the provisions of the Freedom of Information Act (1997) and accordingly may be subject to disclosure. In exceptional circumstances, this information may be subpoenaed by a Court.
Cork City Council > Freedom of Information
4. Are there occasions when a complaint/ issue will not be pursued?
In accordance with Section 152 of the Planning and Development Act 2000, complaints received in writing by the Planning Authority in relation to an alleged unauthorised development must not be vexatious, frivolous or without substance or foundation. Such complaints shall be dismissed.
In addition if it is found that the development, although unauthorised has been in existence for a period of 7 years or more, then the Planning Authority cannot take enforcement action as it is deemed to be “statute barred”
5. What is the procedure that is followed?
On receipt of a complaint, a Planning Inspector carries out an inspection at the location of the alleged unauthorised development and a course of action is decided upon. Every effort is made by the Directorate to encourage compliance with Planning Legislation without having to resort to enforcement action. However, enforcement action is taken in a number of cases in order to resolve the matter and the various steps are outlined below:
- After an initial inspection, if it is deemed necessary, a Warning Letter may be issued to the developer.
- The Warning Letter allows the developer time to respond to the alleged unauthorised development.
- It is an objective of the Planning Authority, having carried out the necessary investigation and having considered any written submissions, to decide to issue (or not issue) an Enforcement Notice.
- If the development is deemed to be unauthorised and is not removed/ remedied after the decision has been made to issue the Enforcement Notice, the Planning Authority can serve an Enforcement Notice.
- Should an Enforcement Notice be served, such a notice will not only require the developer to remove the unauthorised development but also to refund the costs of City Council staff time and resources expended on the enforcement file. Such costs incurred are an average of €1,200.
6. What are the penalties for breach of planning laws?
- All Enforcement Notices require the developer to remove the unauthorised development within a specified timeframe and refund the costs associated with the Enforcement Notice to Cork City Council.
- Any outstanding works which are not carried out or costs unpaid result in non-compliance with the Enforcement Notice.
- The Planning Authority can take summary proceedings for non-compliance with an Enforcement Notice.
- The penalties for breaches of the planning law depend on the nature of the offence but if found guilty, result in a criminal prosecution and a fine and/or a prison sentence.
7. Can I apply for retention of my unauthorised development?
The Planning Act allows for the lodgement of planning applications to retain development that has already been constructed. While such a course of action is not viewed favourably, it is acknowledged that genuine mistakes do sometimes occur and that planning legislation can be inadvertently breached. In cases where development does not contravene policies in the Development Plan and is not objectionable in principle based on considerations of proper planning and sustainable development, it may be possible to ‘regularise’ development by a grant of retention permission. However, it should be noted that
- Retention applications are not given special consideration based on the fact that development has already been carried out.
- Any application to retain development will be assessed based on policies set out in the Cork City Development Plan 2009 – 2015 and on the principles of sound planning and sustainable development, and on relevant issues raised in third party observations.
- If retention of an unauthorised development is refused, the unauthorised development must be removed and/ or the unauthorised use ceased. ‘Repeat’ retention applications for development that have already been refused by the Planning Authority or An Bord Pleanála will not defer enforcement action.
Finally, it should be noted that, fees associated with retention applications are treble the amount of standard applications per the provision of the planning regulations. Prior to submitting an application for retention, it is advised that the developer contacts the Development Management Section of the Planning Authority and arrange a pre-planning consultation.
8. Which issues does Planning Enforcement not deal with?
Planning Enforcement will not investigate matters which lie outside its scope including civil matters and matters to be addressed by other Directorates and Agencies, such as:
- Private rights of way
- Civil boundary disputes
- Noise nuisance (unless the noise breaches a condition attached to a planning permission. otherwise please refer to noise information provided by ENFO)
- Structural damage to private property resulting from construction works
- Matters related to ‘private drains’ (See Drainage Department’s leaflet for more information)
- Outlets associated with boilers and other gas appliances (unless same has a material visual impact from a public area)
- Other types of private nuisance
Matters Addressed by Other Directorates/Agencies
Enforcement Complaint Form
- Building Regulations (Building Control Division)
- Hoardings, signage, and table/chairs, and other structures in the public roadway or on footpaths (Roads Control Division)
- Neglect/ ‘Endangerment’ of Protected Structures
- Parking complaints (except when such parking breaches a condition attached to a planning permission or relates to an unauthorised carpark.) Illegal parking in a Disc Parking Area can be referred to the Transportation Division; other illegal parking (on double yellow lines, etc.) can be referred to the Gardai
- Blocked Public Sewers (Drainage Division)
- Litter/Illegal Dumping, Water Pollution, Other Environmental Matters (Environment Directorate)
Please clink on this link for a general guide to Planning Enforcement in Ireland
A Guide to Planning Enforcement in Ireland leaflet