I bought a property last year from a couple and, in the heat of the moment, chose to turn a blind eye to their retaining the garage which served the house and lies across the road that separates the two plots at a distance of less than 10 metres.
Since completion of the sale, the couple have moved to renovate the garage with the intention of using it as a holiday home and possibly rental, despite objections from neighbours and a strongly worded letter from the local authority, instructing them to cease any works on this property. This letter was issued to them through their solicitor.
The owners have indicated that they are entitled to develop the site in this way as the property was once a separate dwelling (if this was ever the case it was long ago) and show no intention of adhering to the council’s instructions.
It seems they do not intend to make any major structural adjustments but the development is nonetheless a major upset to neighbours living in the immediate area. Obviously in time the property could also be sold as a house and not as a garage with little or no prospect of planning permission for redevelopment.
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It seems astonishing that someone can simply create a house out of a garage under the nose of the council that has advised them to stop. But we have not had a great deal of interaction from the council in response to our complaints, so the owners seem to be confident they can just get away with it. What could you advise us to do in order to prevent this from happening?
Mr D.C.
Planning rows have the potential to get very messy and planning rows with neighbours even more so.
If you have an issue with a development that you believe is unauthorised, the first port of call is the relevant planning authority which will be the local authority – city or county council – for that area. This is the body responsible for overseeing planning, including any enforcement action in relation to unauthorised development.
There is a general dispensation from the requirement for planning for a change of use of a structure as long as that change is not material. I am assuming this is the grounds being argued by your neighbours, especially as they are not altering the size or scale of the structure, just converting it into a residential dwelling – or, as they would argue, back to the residential dwelling it once was.
I have no idea how long ago it was that this building, which has most recently been used as a garage, was actually a habitable dwelling. However, I am familiar enough with parts of rural Ireland to be aware of how quickly a family home can turn into an uninhabitable outhouse without ongoing care and maintenance. And there are countless former houses dotted around the State that were simply abandoned for newer homes close by on the same site and subsequently used to house animals or as storage spaces or garages. So it might not be as long ago as you think.
It is clearly up to this couple to persuade the local authority of the merits of their case, especially as you mention that it is situated in an area that is subject to more restrictive planning guidelines than normal.
I suspect, if they do, they may rely on section 4(h) of the Planning and Development Act 2020. This relates to exempt development and provides for an exemption from the need for planning permission where the development involves “the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures”.
If there is any doubt whether this is exempted development, you can always apply to the council for a ruling on that.
Section 5 of the Act says any person can request a declaration on whether a development is exempt. The council’s decision on the issue should be notified to the person making the query within four weeks. If that were you, they would also notify the couple who own the land. They can extend that timeline by three weeks by seeking further information.
Depending on the outcome, either you or the landowners can appeal it to An Bord Pleanála within four weeks of being notified, as indeed, can the council.
Follow the process
For your part, I can see the concern, not least what it might mean down the line. If this couple’s “garage” was to be sold, it would be very difficult for a new owner to secure planning permission to convert it, especially as you tell me planning in this area is more restricted than it would generally be. If it is already a house and, accepted as such, it might be easier for a new owner to extend it further.
In the more immediate future, its use as a holiday home or short-term rental might be less invasive of your space, so you need to consider if you can live with that.
The main thing if you suspect there is no permission for the development is to follow the procedure meticulously and in writing. The Office of the Planning Regulator in its guide sets out how best to do so.
The first step obviously is to identify the relevant planning authority and alert them to this alleged unauthorised development – or indeed to check if it is deemed exempt under the Act.
The regulator says that your letter should explain why you believe the development is unauthorised, including its precise address, what date and time the unauthorised development started, the nature of the building works, and the names, addresses and other contact details of the owners or people carrying out the development. It also suggests that you state that you are making a written representation under section 152 of the Planning and Development Act 2000, as amended.
That triggers a process. If the council agrees the development is unauthorised, it must issue a warning letter within six weeks. It sounds from what you say that this has happened but you would want to be sure it is the formal warning letter within the enforcement structure and not simply an “advisory”, regardless of its wording.
Once a formal warning letter has been issued, the people undertaking suspected unauthorised development have four weeks to respond to it and the council has to respond to that within a fortnight.
According to the regulator, once the council has decided to issue a warning letter, it is committed. It must investigate the allegedly unauthorised development and, assuming it finds that it is indeed unauthorised and requiring permission, it must satisfy itself that the actions it set down in its warning letter have been met – or not. It has no discretion in this once the warning letter is issued, which is why it is critical to determine the status of the communication you have seen.
The fact that it has “ordered them to cease” would certainly support the view that it was a formal warning letter. If that is the case, the couple involved cannot simply ignore the council’s demand and, if they do, the council is obliged to escalate it.
As the regulator’s guide states, once the council determines that unauthorised development which is neither trivial nor minor is being carried out and that the person doing the development has not remedied the situation, “the planning authority need a compelling reason for taking no further action”.
That could include a decision by the couple to apply for retention – retrospective permission to retain any development – if it is decided that permission is required. You’ll need to keep abreast of local planning notices to see if that happens.
Enforcement
Assuming it doesn’t, the “further action” taken by the council is generally the issuing of an enforcement notice – within 12 weeks after they have replied to any communication from the couple in response to the warning letter.
So the system can take time. At this point, you are talking about 24 weeks from initial complaint to issuing of the enforcement notice; that’s close to six months. But, importantly, the regulator says that when an enforcement notice is issued, the council “should also inform the person who made the complaint of the action being taken”.
Once you’re happy of where you are in the timeline, it would be worth checking in with the council, again in writing. It would seem that if they have issued a warning letter, the only reasons it would not proceed to enforcement is that the couple halt the work which you say they are not doing, or that the couple persuade the council that any works on site are minor or exempt.
The enforcement notice, if it is issued, will order the couple to stop any work on the site and detail any further steps they must take to restore the “garage” or land to its previous use. It also will warn the developers that they might be held guilty of an offence if they persist and that they may have to pay the council if it decides to come on site and rectify the position.
The ultimate sanction is court action. It is not clear to me if a council is obliged to resort to the courts or whether they simply have the option of doing so. But, if all else fails and the council does not, to your mind, carry out its obligations, it is always open to you to pursue a case.
This is the one point in the process where you are not obliged to step back and let the planning authority – the local council generally – take the lead. It is provided for in the Planning and Development Act, section 160 (1).
It states: “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 [my emphasis], 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;
Section 162(1) of the same Act makes clear that it is up to the defendant to prove that permission has been granted for any development, and section 161 clarifies that the defendant will have to pay the costs of the proceedings where they are found to have committed an offence.
However, legal action – especially where the High Court is involved – is an expensive process, potentially very expensive depending on the court time required and indeed the input of legal advisers. It is also one that could lead to very personal animosity with neighbours, so you want to be sure you are prepared for the consequences if you go down this road, not least if this property you bought is in a part of the State where you are not originally from but this couple are locals.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
