Enforcement order for exempted development

Discussion in 'Sites, planning, self-builds and extensions' started by MDGA, 6 Aug 2010.

  1. MDGA

    MDGA Frequent Poster

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    I have been issued with an enforcement order to cease and remove all unauthorised development from a rural site. The development on the site consists of a 175sqm stable block and has the benifit of an exempted development certificate. The development was built in 2006/7. In 2008 an unauthorised apartment was constructed in part of the stable building. A written undertaking has been issued to remove all unauthorised development i.e. the apartment. The stable is being returned to it's original exempted development status. The Planning Authority have sent the file to their solicitor and seem to be seeking to have the stable block demolished, i.e. the building rather than the use is unauthorised. I am seeking a section 5 on the matter of exempted development.
    Any advice?
     
  2. 4poster

    4poster Registered User

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    You say there is a written undertaking in place to remove unauthorised development, the apartment. That implies there is still unauthorised development on the site and the council are seeking to have it removed.
    Because you have had an unauthorised development on your land means you can be prosecuted for that, regardless of whether it has been removed or not.

    The section of the building which is an apartment is not exempted development and no certificate could exist for that.

    The Section 5 declaration is a seperate matter.
     
  3. MDGA

    MDGA Frequent Poster

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    24
    I was requested to give a written undertaking by the council's solicitor to remove the unauthorised development from the site. This written undertaking has been issued.


    The unauthorised apartment use has been vacated and removed at this stage and the building has been returned to it's original use (stables) prior to the unauthorised use. The heating system has been removed, and all means of making the space habitable. The written undertaking confirms that the building will only be used as a stable block. A meeting has been sought to confirm that the apartment has now been removed.

    I therefore confirm that the building has been returned to it's original use as permitted under exempted development Class 6. which was duly certified as exempted development in 2006

    I am seeking clarification through the council's solicitor that the unauthorised development has now ceased.

    My issue is once I have returned the building to it's original use (Class 6 stables), surely there is no unauthorised development now on the lands. Surely the council cannot seek to have the development demolished.

    I will be seeking a declaration of exempted development, section 5, that the stable building as constructed in 2006 constitutes exempted development, prior to the modifications which included an apartment carried out in 2008 which have now been removed
     
  4. 4poster

    4poster Registered User

    Posts:
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    Common sense says you are correct, and if common sense prevails then you should be ok. However, technically what you just did was a change of use from an apartment to a stable which in itself is not an exempted development.

    You need to push the point that this was originally an exempted development and is now once again in it's original exempted state.
     
  5. HeadTheWall

    HeadTheWall Registered User

    Posts:
    35
    This is just planners trying to generate work for themselves. THey must be bored of their minds in the office
     
  6. MDGA

    MDGA Frequent Poster

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    Got a second solicitors letter today.

    The Planning Authority are of the opinion that the stables as built are not exempted development. and therefore should be demolished. (remember they gave me permission for a similar structure in 2006)( this is very heavy handed for an agricultural building in a rural area)

    Anyway, I asked about the process of applying for a section 5 Declaration and the planning authority say that I cannot apply to them only through their solicitors.????? I don't think they are correct on this matter

    The Planning authority are still refusing to meet with me to discuss the situation. This is going on since September 2009 and I have written and rang on many occasions.

    I have been told that The Planning Authority feel the structure is not exempt because of its proximity to an adjoining house. I have told them that the building has been certified as exempted development in 2007 and that the required consent has been issued by the owner of the adjoining house.

    The solicitors letter implies that the Planning Authority doubts my agricultural heritage, surely they are not paid to make assumptions. ( I come from a local farm family with many acres of land)

    A big issue is the fact that the Planning Authority refuse to meet to discuss the file and allow me to present my file. Everything is answered by, send it to their solicitors. Surely this is a big waste of tax payers money

    Can I also write to the Planning Authority to ask them to clarify how they made some recent decisions to grant permissions on adjoining lands when they have refused many of the locals???
     
  7. mf1

    mf1 Frequent Poster

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    4,099
    I'm a bit lost here.

    How were the stables exempted development? Did you have an architect certify that? Did the Local Authority confirm it? And when you say they gave you permission- do you mean planning permission?

    I think you need to take your own legal advice- it looks as if you are trying to bypass the Local Authority's solicitor ( who has been appointed to deal with the matter) and deal directly with the LA.

    "Can I also write to the Planning Authority to ask them to clarify how they made some recent decisions to grant permissions on adjoining lands when they have refused many of the locals??? "

    How is this relevant to your situation?

    mf
     
  8. MDGA

    MDGA Frequent Poster

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    The stables were certified by an independent engineer as exempted development and were confirmed by an architect as exempted development in 2007.

    I was also professionally advised that they were exempted development prior to construction in 2006.

    I applied for planning permission for the stables to be completely sure that they complied with the proper planning and development of the rural area.

    I mentioned in my planning application that I was of the opinion that they were exempted development. Planning Permission was granted by the Planning Authority subject to conditions.

    I elected to build my stable building as an exempted development and had the building supervised and certified by an independent engineer.

    In 2008 I converted part of the building into an unauthorised use. This use has now been removed and documentation sent to the planning authority and solicitor confirming the building is now being used as a stables.

    The planning authority have instructed their solicitor that the building is not exempted development. (I have been told that this is because of the buildings proximity to neighbouring houses) yet I have letters of consent from my neighbours dated septemebr 2006.

    I have asked the Planning Authority for several meetings to discuss the issue but they have will not meet and send me to their solicitor every time.

    I think this is a massive waste of tax payers money, when the issue centers on a stable building in the rural countryside that has been certified and a planning authority that refuses to meet.
     
  9. onq

    onq Former user

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    4,390
    Hi MGDA

    I've sat back and watched this one develop for a while.
    There are a few points I'd like to raise and some advice I'd like to offer.
    I'm also going to query what seem to be missing causal links in the sequence of events.
    You can think of this question-and-answer session + advice as an outline preparation for the Court case.

    1. Why, if you knew it was exempted development did you apply for permission?

    Assuming you were correctly advised about the exempted status, the best route to availing of this status would have been to draw up plans of the proposed development and seek a Section 5 Declaration from the local authority, which they could not have unreasonably withheld.
    The fact that you didn't suggests that the exempted development schedule wasn't going to give you all you were hoping for - was that the position?

    2. Why, if there was a permission granted, did you decide to take the view that you could build it as exempted development?

    The only reason I can think of for taking this route is if you didn't like some of the conditions attached to the permission.
    You then might have decided to circumvent them by claiming relief under the exempted development schedule - was this the position?
    Once its covered by a permission my understanding is that you must abide by the permission, even if it might otherwise have been exempted development. This applies whether all or part of the works applied for might have been exempted development and there is a thread or comment on this somewhere on http://www.archiseek.com, q.v.

    3. Its not exempted development anymore - its covered by a permission:


    Regardless of the original exempted status, once there was a permission issued and you admit were in breach of it, my understanding of planning law is that you now may have no means of relying on the exempted development schedule as a defence.
    You must show that the development now complies with the terms of the original permission, assuming it does, or else seek retention for the parts that don't.

    4. Consider making a Section 5 referral, even at this late stage, to clarify the above issues before the Court case:

    Suss out the possibility of also making a referral to An Bórd Pleanála at the same time or sequentially, but ideally before the Court case.
    This may help clarify all the planning matters befoer the Court, and if it is still ongoing, you may be able to argue that the planning process is not yet exhausted and that therefore Court action may be premature - don't get cocky about this though.

    5. The legal route:

    If the local authority take a section 160 action against you and there is still some matter that is not in compliance with the permission, you are unlikely to successfully defend your case and will more than likely have to pay some if not all of the Planning Authority's legal costs.
    Read this to see how draconian the Section 160 action is under the law - you basically have no defence, assuming you committed the breach:
    http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0160.html
    Case law on this seems to be sparse and the Courts may not interpret it as severely as the law is written, but seems to be totally biased against the offender, without any means of mitigation - including saying you've applied for retention permission and/or the matter is under appeal.
    My own view is that this is a necessary balance to the kind of leeway given to developers in strategic development zones, or SDZ's as they are known.

    6. Obtain independent planning advice and retain competent legal representation:


    Do not relay on your own expertise in this matter, since this has what has got you into this storm in a teacup in the first place.
    If you're forced into court, may I respectfully suggest you engage a competent architect who has specialised in planning law to advise your legal team.
    Retain a planning consultant to offer expert evidence on your behalf and/or a solicitor and/or barrister who are well versed in the minutiae of planning law and recent decisions.
    Either or both MUST be used to dealing with this local authority or within the jurisdiction of the Court.
    The sight of ta defendant who has committed the alleged offence going in and swearing evidence in his own defence always looks less impressive than an independent professional of say, ten years standing, swearing evidence on behalf of said defendant.

    ONQ.

    http://www.oneillquigley.eu

    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.
     
  10. MDGA

    MDGA Frequent Poster

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    24
    1. I applied for planning permission as I work in this field. I also wanted planning permission as I have a vexatious neighbour. I mentioned in my application for PP that the development was exempted development.

    2. I elected to build the stables as exempted development. There were 2 restrictive conditions on the planning permission That I did not like. I built the building similar to the planning drawings, but not exactly. I built the stables in compliance with the exempted development rules. (If I applied for a 24sqm domestic shed with a 6m high flat roof and got planning permission, I could still elect to build an exempted 24sqm domestic shed with a 2.9m high flat roof)
    Surely my exempted development rights are still in place for my lands)

    3. I have asked the Planning Authority about a section 5 declaration and they told me I could only do so through their solicitors. I have asked for clarification on this matter

    4. I have asked them to clarify why the stables is not exempted development,
    No answer yet, although I hear it is to do with proximity to adjoining houses, that said I forwarded on letters of consent from adjoining houses dated september 2006. I comply with all distances

    5. I have asked the solicitor to clarify the exempted development status of the building before any court proceedings, a section 5 declaration or even a refferal.

    6. If the building requires retention for whatever reason I am willing to apply, as I was approved for a 176msq stable building on my lands in 2006.

    7. This file has been going on for 1 year now and I have never had a meeting to discuss the file with the planning authority, yet when dealing with other adjoining planning authorities they are more than helpful in order to avoid court.

    8. I put my hands up over the unauthorised conversion, I have removed same, I had an urgent need at the time which will have to be revisited.

    I believe the planner in question is putting forward a case that I never built stables but I only intended to build the unauthorised family flat from day one.
    I have asked the enforcement section to outline in detail my agricultural heritage as they seem to contest the fact that I come from a farm family having been raised on a farm.

    To me it's a planner with a greater sense of power to assume things rather than look at the facts. (The PA gave me permission for an agricultural structure on my lands in 2006 based on my agricultural heritage in this rural area) The planner has now washed his hands and sent it off to their solicitors.
     
  11. onq

    onq Former user

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    4,390
    MDGA,

    I think you've answered several of your own questions here.

    • You have admitted you had an agenda to build an apartment, since removed.
    • You have admitted you failed to follow the previous planning permission for the stables.
    • Your understanding of how Planning Permission works over previously exempted development varies from mine.
    I strongly suggest you get some specialist planning advice on this matter before the court date.

    ----------------------------------

    There are other things that grate on reading your posts.

    At the start you admitted to a "vexatious neighbour" but then suggested he was the cause of you seeking permission.

    This doesn't stack up - if you had gotten a Section 5 Declaration in favour of the exempted development there was nothing your "vexatious neighbour" could have done about it.
    However seeking planning permission meant he could have objected and then appealed it - did he do so?
    If not, you cannot call him "vexatious".

    OTOH if he did, I find it hard then to understand your claim that you have letters of consent from your neighbours regarding the stables.
    Did you mean to say "all my neighbours except one"?

    ----------------------------------

    TBH on the surface it looks like you've been wronged, but when looked at in detail I keep finding things that don't seem to stack up.
    I realise that you're very close to all this and possibly taking it personally - as development of private land can become - but there are other things that don't stack up.

    ----------------------------------

    Like, for example, your farming heritage.
    You have stated "I applied for planning permission as I work in this field".
    With the greated of respect, if you're working in THIS field, the provision of archtiectural services full time, then you're not working out IN A FIELD as a farmer.
    (Although, given this damned recession we may all be out working in the field shortly)

    I realise your farming heritage may count, particularly if you grew up in this area, but you get my drift - it seems pretty tenuous, and farming isn't stables.

    ----------------------------------

    The point I am making is that you appear to have gotten so far up the planners noses with all of this that they won't meet with you to talk.
    They may have started legal proceedings to - as they say in rural areas - "put manners on you".

    Now I've met some bollicky planners in my time, but you have to admit there are two sides to every story.
    I would suggest you try to open discussions at a higher level - perhaps county manager - to see what can be done.

    As I said before, you need to take professional, impartial advice to ensure you have some grounds to fight your case.
    If it turns out you don't, you may as well concede and save yourself some money.

    Don't be bull-headed on this matter - planning law is well traversed and you should do your research before going anywhere near a Court.
    Stand back a little, you may be too involved, and see what good may come of it.

    Best of luck and let us know how you get on.

    FWIW

    ONQ.

    http://www.oneillquigley.eu

    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.
     
  12. MDGA

    MDGA Frequent Poster

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    24
    There was never an agenda to build a family flat. (u sound like a planner)
    There was an urgent family need to house a family member, but that is personal.

    Michael O Leary has some fine horses. I might have a few winners some day too.

    I will keep you posted, The director of services is on this one, as advised.
     
  13. onq

    onq Former user

    Posts:
    4,390
    MGDA

    Surely you're not that old that you measure success through your horses. :)
    Mind you, if you had confined yourself solely to breeding horses, we wouldn't be talking.
    Also nobody advised you to get the Director of Services involved, at least not in this thread.

    I note you have failed to clarify any of the issues raised above despite the fact that all were relevant to the case.
    It suggests that your interpretation of the law may be incorrect and your presentation of the issues may have been incomplete
    For example, we are only now hearing about "the urgent family need to house a family member" as an excuse for breaching planning law.

    If you were skittering like this while not complying with either the exempted development schedule or the permission I can understand the planners attitude.
    Take independent competent professional planning and legal advice, possibly don't use excuses like this in Court but instruct your solicitor fully.
    Otherwise you will make it impossible for him to master the file or devise a strategy and you may lose credibility and possibly the case.

    FWIW

    ONQ.

    http://www.oneillquigley.eu

    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.
     
  14. MDGA

    MDGA Frequent Poster

    Posts:
    24
    Hi ONQ,

    I genuinely built my stables in 2006/2007 and I kept my horses and ponies as my family have done for generations. Donkeys are great fun. Do you have them in D4?

    I carried out an unauthorised development / use in 2008 which I have now removed. Hands up, I was wrong.

    I am currently dealing with the Planning Authorities Solicitor, who is very helpful.

    I am currently dealing with the Planning Dept., furnishing them with information to demonstrate my case. I believe and have been advised that the original stable building constitutes exempted development.

    In the event that I and my advisers are wrong I have stated to the Planning Authority that I will have an application for retention permission lodged. I am currently seeking the Planning Authority to confirm the status of the stables, ie exempted or not. I believe that stables at this location are in keeping with the proper planning and development of this rural area.

    I believe that this case got legs because there was no discussions at the early stage. That was a pity. It might be a clash with a planner? I don't know, the truth always comes out in the end.

    I will let you know what happens. Legal team on standby.
     
  15. onq

    onq Former user

    Posts:
    4,390
    MGDA

    The hardest mistakes to rectify are usually those left longest to remedy and clashes with planners seldom lead to a good or speedy resolution.

    The permission you achieved seems to come between you and the exempted development schedule.
    You must comply with one or the other FULLY and my money is on the permission because of information and advice already given in this thread.
    You could force a decision by requesting a Section 5 Declaration from the Local Authority.
    If you want to take this beyond the local authority you could make a formal Referral to An Bórd Pleanála.

    BTW, I don't live in Dublin 4, although I'm sure there's a myth somewhere suggesting that every Architect does.
    I don't know about the donkeys either but there's plenty of horse-lovers in the area - maybe you should open a riding school.

    ONQ.

    http://www.oneillquigley.eu

    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.
     
  16. MDGA

    MDGA Frequent Poster

    Posts:
    24
    I have asked for a declaration on the exempted status of the stables through the councils solicitor. I was directed by the PA that I could not make a section 5 application myself. ( I queried this) I do comply with the exempted development schedule and article 9. That said,

    I have written to the senior planner and solicitor and confirmed that I am willing to apply for a retention permission for the stables if the PA do not deem the stable exempted development.

    I have been at all times open for direction on the matter. I should hear something back this week. I am also engaging the services of a previous chairperson of An Bord Pleanala on the matter.

    I will keep you posted
     
  17. onq

    onq Former user

    Posts:
    4,390
    MDGA,

    That advice from the PA about your rights to make a Section 5 declaration is strange.
    Perhaps being under threat of enforcement action somehow prevents the local authority from replying to you.

    Its more likely they misinterpreted Section 160 of the Planning and Development Act 2000.
    On the other hand its possible that you may have misunderstood what they said.

    ------------------------

    Section 160 is the section under which planning enforcement action is taken.
    It basically says that you have no defence one the action has commenced.
    Saying you have applied for retention permission for example is no defence.

    The PA may have interpreted this to mean you cannot make a planing application or a Section 5.
    This is not the case as I understand the law but there may have been recent decisions on this.
    I think you could still make an application or seek a Section 5 Declaration.
    The PA might choose to refuse one and not answer the latter.
    This would be where a Referral to the Bórd might come in.

    ------------------------

    Regarding the appointment of your planning consultant; -

    I don't know that jumping from *you* as planning consultant in your own case to "a previous chairperson of An Bord Pleanala" is necessarily a good thing.
    I was thinking more along the lines of someone with local experience who could smooth ruffled feathers and leave people feeling the matter had been amicably resolved.
    Wading in with a heavy hitter could make the emotional spectrum flare well into the red and might be counter productive.

    Apart from that, its the inspectors who do the planning analysis, not the chairman of the Bórd, although he might still have a handle on how the current chairman might think.
    Also, in the Bórd, its not always the chairman who signs off on the decisions - you'll read various names of Members of the Board signing decisions.
    A former Bórd chairman - unless he came from a legal or planning background - might not have the necessary knowledge of minor enforcement matters to contribute much to your case.

    Anyway, here's Section 160 et seq. for you to have a mull over.
    I already posted the link to thsi in Post #9, Item 5 therein.
    I have added in Sections 161 and 162, see bold text.

    http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0160.html
    http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0161.html
    http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0162.html

    You should also read 163 and 164 for completeness sake.

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

    160.—(1) 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 and specifies in the order to ensure, as appropriate, the following:
    (a) that the unauthorised development is not carried out or continued;

    (b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

    (c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
    (2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.

    (3)
    (a) An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.

    (b) Subject to section 161 , the order by which an application under this section is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.
    (4)
    (a) Rules of court may provide for an order under this section to be made against a person whose identity is unknown.

    (b) Any relevant rules of Court made in respect of section 27 (inserted by section 19 of the Act of 1992) of the Act of 1976 shall apply to this section and shall be construed to that effect.
    (5)
    (a) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land which is the subject of the application is situated.

    (b) The Circuit Court shall have jurisdiction to hear and determine an application under this section where the rateable valuation of the land which is the subject of the application does not exceed £200.

    (c) The Circuit Court may, for the purposes of paragraph (b), in relation to land that has not been given a rateable valuation or is the subject with other land of a rateable valuation, determine that its rateable valuation would exceed, or would not exceed, £200.

    (d) Where the rateable valuation of any land which is the subject of an application under this section exceeds £200, the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court by order.
    (6)
    (a) An application to the High Court or Circuit Court for an order under this section shall not be made—
    (i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or

    (ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40 ) or, as the case may be, of the appropriate period as extended under section 42 .
    (b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.
    (7) Where an order has been sought under this section, any other enforcement action under this Part may be commenced or continued.


    161.—(1) The court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay
    (a) where a person is convicted of an offence under this Part, to the planning authority, or

    (b) where the person is the subject of an order under section 160 , to the planning authority or to any other person as appropriate,
    the costs and expenses of the action, measured by the court.
    (2) Where costs or expenses are to be paid to the authority, they shall include any such costs or expenses reasonably incurred by the authority in relation to the investigation, detection and prosecution of the offence or order, as appropriate, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers.

    162.—(1) In any proceedings for an offence under this Act, the onus of proving the existence of any permission granted under Part III shall be on the defendant.

    (2) Notwithstanding subsection (1) of this section, it shall not be a defence to a prosecution under this Part if the defendant proves that he or she has applied for or has been granted permission under section 34 (12)
    (a) since the initiation of proceedings under this Part,

    (b) since the date of the sending of a warning letter under section 152 , or

    (c) since the date of service of an enforcement notice in a case of urgency in accordance with section 155 .
    (3) No enforcement action under this Part (including an application under section 160 ) shall be stayed or withdrawn by reason of an application for retention of permission under section 34 (12) or the grant of that permission.

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

    As you can see, in a Section 160 action, all the cards are stacked firmly against the defendant, but so far I understand the Courts are taking a reasonable view.

    Assuming that is, you can show evidence that; -

    • you have been reasonable in your dealings to date [uncertain, in this case],
    • have tried to remedy the situation [true, in this case] and thus effectively show that
    • the action by the local authority was unnecessary [debatable, but that's what you could try to show].

    ------------------------

    As you might be coming to realise, this could be yet another area in which the appointment of a former chairman of An Bórd Pleanála could possibly come against you.
    The Bórd is a quasi-judicial body that can only be overruled by the High Court on a technical matter if I recall correctly.
    The judge may be honoured by his presence - you're showing how seriously you take the case - or he could be annoyed that an a former Bórd Chairman is "lording it" over him.
    Lots and lots of respect to the judge there, or it could backfire badly.

    This is now starting to overlap on the askaboutlaw forum and probably is too detailed to be of huge benefit to AAM readers and also could disclose court strategy, so I think we should end this discussion here for the moment.
    Please feel free to post the results of any hearings so we can learn from them, but be careful not to make any defamatory comments.


    ONQ.

    http://www.oneillquigley.eu

    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.
     
  18. TheRed

    TheRed Frequent Poster

    Posts:
    49
    Planning Authority are obliged to deal with s.5 referral and also you are also entitled to appeal their decision to An Bord Pleanala.

    They can request you correspond with their solicitor re the enforcement case, but that does not mean you can't apply for a s. 5 in the normal way.

    Based on the current situation, as you present it, it seems you've remedied the unauthorised development. As far as the Council is concerned, it seems the case pivots of whether the structure was built as an agricultural structure or an unauthorised habitable structure.

    Any evidence you have relating to the use of the structure as an agricultural one, prior to the unauthorised use, should be provided to the Council's solicitor. You could also consider submitting a sworn statement to this effect and ask anyone who witnessed the use of the structure as an agric one to swear an statement to that effect. You and your witnesses can write these statements and swear them to a commissioner of oaths for a few bob and then send them to the Council's solicitor.

    You need to be absolutely sure that you comply with the exempted development regulations. An uptodate letter from any neighbour within 100m might be helpful.

    There are two types of unauthorised development prosecutions. One for carrying out the unauthorised development; the other for non-compliance with an enforcement notice. However, timelines to prosecute for a summary offence are quite tight for a Council. A s.160 /injunction is highly unlikely to be sought in relation to your unauthorised development, far too expensive for the Council.

    If you have not fully remedied any element of the unauthorised development that you carried out, you should do so immediately.

    As you state above, you did carry out an unauthorised development, so the Council were right to address this. While dealing with the slow-moving public bodies can be frustrating, I would suggest you are not in a good position to give out about a waste of taxpayers' money. By carrying out unauthorised development, you caused an expensive investigation, enforcement action and the need to seek legal advice. So you are the person wasting taxpayers' money.
     
  19. corco2000

    corco2000 Frequent Poster

    Posts:
    100
    What was the final outcome on this case?
     
  20. AlbacoreA

    AlbacoreA Frequent Poster

    Posts:
    3,094
    For the benefit of a anyone else getting an update (and completely confused like i was) this is an new post in a 8yr old thread.