In Ireland you are required to obtain planning permission for any “development” on or to properties. The legislation surrounding planning in Ireland has been amended several times but in general the two main pieces of legislation are:
- The Local Government (Planning and Development) Act 1963.
- The Planning and Development Act 2000.
The 1963 Act came into force on 1st October 1964 and this means that structures in place before that date before that date are generally exempt from the need to have planning permission in place. However, there are some exceptions to this rule and for this reason property owners can’t rely on the date of construction as an absolute guarantee and further investigations must be made.
In this case, the term “development” is defined in Section 3(1) of the Planning Act 2000 as follows:-
“Development” in this Act means, save where the context otherwise requires, the carrying out of any works on, in, over, or under land or the making of any material change in the use of any structures or other land.”
The Act then goes on to break this definition down further, into two distinct parts. The first is the idea of “Works”, and the second is “Material change of use”.
“Works” are defined in Section 2 of the 2000 Act as
“including any act or operation of construction excavation, demolition, extension, alteration, repair or renewal…”
“Alteration” is also defined in Section 2 and includes
“plastering or painting or the removal of plaster or stucco, or the replacement of a door, window or roof which materially alters the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.”
It will also apply to protected structures where this kind of work is being carried out.
“Material change of use”
This term is not specifically defined in the Act but Section 3(2) sets out cases which are to be treated as a “material change of use”. These include:
- Any structure, tree or other object that is used to advertisements.
- Any area where caravans, vans, tents or other items that are intended for caravanning or the sale of goods.
- Any area where caravans and tents are stored.
- Any area where parts of vehicles, industrial or builders’ waste or old metal is left.
It can sometimes be hard to determine what qualifies as a “material change of use”. The general principle is that the new use must be substantially different from the previous use. Again, that isn’t always clear but an examination of the facts will usually lead you to the correct answer.
Comparing the use of the property before and after the works have been carried out will usually lead you to the correct decision. So, if a house is turned into a shop then that would amount to a material change of use. If, however, the owner of the house starts a home business for online sales from one room that the material use of the house hasn’t changed.
The Act also sets out a number of exemptions to the requirement to obtain planning permission and these include the following:-
- Where development took place before the commencement of the 1963 Act ie before 1st October 1964.
- Where the works fall into Section 4 of the Planning and Development Act 2000,which sets out a number of developments that are exempt from planning.
- Where the Minister uses the powers given to him under the Act to deem some structures as exempt or pass regulations for certain developments so as to make them exempt from the need for planning permission.
Obtaining planning permission.
When you’re thinking about carrying out works to a property, you need to follow the process set out by the Act. The decision is ultimately made by the planning department of the local authority and they have the power to issue a number of planning documents including the following:-
- Outline planning permission
This is not the final grant of permission. Essentially it signals the fact that the Council have agreed to the works in question on principle but it does not authorise the property owner to carry out the works in question. Once outline permission has been granted, the Council can then set a number of conditions in place that must be fulfilled by the applicant but the outline permission indicates that the final permission will be granted.
- Notification of a Decision to Grant Permission –
Once again, this is not the full permission and you can’t begin works until four weeks have passed and the Council confirms that full permission has been given.
- Notification of Grant of Permission.
This is the actual planning permission that will issue to you and it’s at this stage that you are allowed to go ahead with the planned works. It will usually contain a number of financial conditions that must be complied with – you will need to pay certain sums to be allowed to join up to the local water supply and paying these sums means that the local authority will take over responsibility for looking after the public services for the property eg water, roads etc.
- Retention permission.
This type of permission is granted when it comes to light that the correct planning permission was not obtained when the property was initially being built. It’s an important type of permission because it allows properties to be bought and sold even though the process for getting planning permission wasn’t followed in the past.
On 1st June 1992 a new planning provision was introduced in Ireland – building regulations. These are a code of practice intended to ensure that the property was built in the possible way from the point of view of fire escapes, sound control, ventilation, hygiene, drainage and waste disposal, stairways, ramps and guards and fuel and energy conservation for the purposes of ensuring health and safety are at the highest level.
Once again, your solicitor won’t be able to confirm that these regulations have been fully complied with and this is also something that needs to be set out in a Certificate signed by an Architect or Engineer once they’ve inspected the property fully.
There are also a number of exemptions to the requirement to comply with these provisions and the property should be examined from this point of view also.
How does planning affect your purchase or sale?
Planning documents are extremely important when properties are being bought and sold. There are a number of documents that your solicitor will look for during the purchase transaction:-
- A copy of the final grant of planning permission/retention permission (whichever one is applicable).
- An Architect’s Certificate of Compliance with Planning Permission/Retention Permission. This is a document prepared and signed by an Architect or Engineer who can testify that the property was built in accordance with the planning permission furnished and that it adhered to all of the conditions set out relating to how the property should be built. This is a very important document because in general your solicitor won’t be a builder or other person familiar with how houses should be built. So they’ll need to rely on an expert who reviews the planning permission and can say that the house was built correctly.
- Details of any issues regarding planning permission in the past. Has the Council ever served any notices in relation to the property, to say that there has been some kind of development that was not in line with the Planning Act? Is there some part of the property that could be served with a notification by the local authority but which may be highlighted in the future?
Your solicitor will rely on two things when they are examining the planning condition of the property. First, they’ll review the documents provided by the vendor’s solicitor and secondly, they’ll carry out a planning search.
The Planning Search
The planning search is carried out by an independent firm of law searchers. Your solicitor will send them a copy of the planning permission that has been sent on from the vendor’s solicitor and they’ll examine the planning register in the local authority to see for the following:-
- Have any enforcement notices been served by the Council?
- Have any Compulsory Notice Orders (CPOs) been served by the Council?
- Are there any other notes on the planning register eg any environmental provisions or conservation orders.
The planning search is a vital part of the pre-contract stage of buying a property. The firm of law searchers will charge a fee but this is one situation where the term “pennywise, pound-foolish” is definitely applicable. If you’re getting a mortgage then your bank will require the correct planning to be in place. You also need to think about the day when you’ll come to sell the property yourself. The people who buy the property from you will expect the planning to be in place also. If this aspect of a house isn’t in order then the entire deal can fall apart.
The Planning Warranty
Under General Condition 32 of the contract, the vendor guarantees to the purchaser that every aspect of the property is correct from a planning point of view. So, by signing the contract, the vendor is confirming that the correct planning permission was obtained for the property and there are no issues that the purchaser needs to be aware of. If there is some issue that the purchaser needs to be aware of then it should be fully outlined in a Special Condition to the contract which will amend the planning warranty.
If your solicitor needs to amend General Condition 32 in this way then it doesn’t always follow that the sale will fall through. It could simply be the case that it was necessary to obtain retention. In that case a special Certificate can be provided by the vendor’s architect and, once it has been accepted by your bank, the transaction can go ahead.
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