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.
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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.
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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.
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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.
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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].
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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.
[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.
