The first significant planning law in Ireland was the Local Government (Planning and Development) Act, 1963.
The next major piece of legislation dealing with development and planning was the Local Government (Planning and Development) Act, 2000 which consolidated Irish planning law by incorporating 9 planning and development acts passed since 1963.
The Local Government (Planning and Development) Act, 2000 was itself amended by the Planning and Development (Amendment) Act 2002 and the Planning and Development (Strategic Infrastructure) Act, 2003.
The Act at section 4(2) (a) provided for planning regulations, the main one now in force being the Planning and Development Regulations 2001.
Section 7 of the Local Government (Planning and Development) Act, 2000 provides for a planning register to be kept by a planning authority (section 2(1)). However there is no guarantee that the planning register is kept up to date by the authority as they may do so “as soon as may be”.
When a solicitor is acting for a purchaser of a property he/she should have a planning register search carried out before allowing his client sign the contract for sale.
Development is defined in section 3(1) of the 2000 Act as:
3.—(1) In this Act, “development” means, except 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.
(2) For the purposes of subsection (1) and without prejudice to the generality of that subsection—
(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or
(b) where land becomes used for any of the following purposes—
(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or habitation or the sale of goods,
(ii) the storage of caravans or tents, or
(iii) the deposit of vehicles whether or not usable for the purpose for which they were constructed or last used, old metal, mining or industrial waste, builders’ waste, rubbish or debris,
the use of the land shall be taken as having materially changed.
(3) For the avoidance of doubt, it is hereby declared that, for the purposes of this section, the use as two or more dwellings of any house previously used as a single dwelling involves a material change in the use of the structure and of each part thereof which is so used.
So there are 2 separate parts to “development” as defined:
- Carrying out of works and
- Material change of use.
However unauthorised developments can only have taken place after 1st October, 1964.
Exempted development is development where an applicant is exempt from the obligation to obtain planning permission which occurs in 3 circumstances:
- Where the development took place before 1st of October, 1964
- Where section 4 of Local Government (Planning and Development) Act, 2000 provides that certain types of development are exempt
- Where the Minister made regulations providing classes of development to be exempt, which he did under the Local Government (Planning and Development) Act, 2000 and the Local Government (Planning and Development) Act, 1963
One of the most important categories of exemption is contained in the 2000 Act and includes:
- a) where development consists of carrying out works which affect only the interior of the structure and
- b) works which does not materially affect the external appearance of the structure.
From a solicitor’s perspective, he/she should get an architect to furnish a Certificate or Declaration confirming that particular work is exempt and the grounds which bring the development under an exempt category.
Planning permission is required for all development of land carried out since 1st October, 1964 and which is not exempted development or for the retention of unauthorised structures.
Part III of the Local Government (Planning and Development) Act, 2000 deals with planning permission, and sets out the procedure for applying for permission, time periods, notices, and gives the planning authority the power to impose conditions when granting permission.
The solicitor needs to read all conditions imposed in any planning permission and must ensure that any financial condition imposed has been complied with.
Part VIII of the Act provides for enforcement mechanisms including
- Criminal prosecution
- An enforcement notice under section 154/5 of the Act
- A planning injunction under section 160 of the Local Government (Planning and Development) Act, 1963.
Critical questions to be answered in relation to the property are
- Has there been in relation to the property any development (including change of use or exempted development) within the meaning of the Planning Acts on or after the 1st October 1964.
- Evidence of Compliance with the financial conditions by way of letter/receipt from the Local Authority.
- Certificate/Opinion from an Architect/Engineer that the Permission/Approval relates to the property and that the development has been carried out in conformity with the Permission/Approval and with the Building Bye-Law Approval (if applicable) and that all conditions other than financial conditions have been complied with.
If there is formal confirmation from the local authority that the roads and services have been taken in charge, this is acceptable that the financial contributions and/or lodgement of bonds with the council has been complied with.
Even where it is claimed that particular development is exempt a certificate or opinion from an architect/engineer should be obtained as every exemption has limitations placed on it.
Building Control Regulations
The Building Control Act, 1990 is the important Act here and provided for building regulations to be drawn up to ensure buildings were built in accordance with the best Code of Practice. The main provisions of this act came into force on 1st June, 1992.
A Certificate/Opinion of Compliance with building regulations from an architect/engineer is essential. There should be no reservations or exceptions in it.
Local Government (Multi-Storey Buildings) Act, 1988
This Act deals with buildings with 5 or more storeys and a basement is considered to be a storey.
The Building Regulations
The Building Control Act, 1990 and the Regulations made under it are “the Building Regulations”. Prior to the Building Regulations some, but not all, parts of the country had building bye-laws.
The Building Control Act, 1990 did away with the need to obtain bye-law approval from 1st June, 1992. If no notice was served before 1st December 1992 in respect of works carried out prior to 13th December 1989 the works are deemed to have been carried out in accordance with the bye-law.
From 1st June, 1992 the Building Regulations apply in relation to works carried out, and this includes alterations or extensions of existing buildings.
The Building Regulations set out a new system to regulate building practice in Ireland and to improve building standards.
In a similar way to the Planning Acts, the Building Control Act, 1990 provided that certain classes of development are exempt.
For all works and uses to which the Building Regulations apply a commencement notice must be submitted to the building control authority.
The Building Control Regulations 1997 provide for the need for a fire safety certificate to be obtained before work commences on a development. Domestic dwellings are exempt and there is a list of other exemptions also.
There is a limit of 5 years from completion of the works or change of use after which no enforcement notice may be served by the local planning authority.
General Condition 36-the Planning Warranty
General condition 36 of the standard Law Society contract of sale requires the production of a certificate or an opinion on compliance with planning and building regulations from an architect/engineer professionally qualified to so certify or opine.
It also provides a warranty to the purchaser that all developments on or to the property since 1st October, 1964 comply with all the requirements of the planning acts and building regulations/bye-laws. It also warrants that if a planning permission has been implemented then the vendor warrants that the conditions have been substantially complied with.
Because of the extensive nature of this warranty it is common for this condition to be deleted or varied by special condition. Non-disclosure of any problem re planning prior to signing of the contracts could lead to rescission of the contract and legal proceedings for damages.
Architect’s Certificates of Compliance
It is common practice to seek a certificate of compliance with planning permission and building regulations from an architect/engineer.
The certificate of compliance should
- Contain the qualifications of the person giving the certificate
- Confirm the means of knowledge
- Confirm that the planning permission relates to the development in sale
- Confirm that the design conforms with the Building Regulations
- Confirm that the development complies with the planning permission
- Not contain any qualifications or exceptions which are not generally acceptable
- Be dated and signed.
Certifiers may also be asked for a copy of their professional indemnity insurance to confirm the adequacy of same.
Be careful about the difference between a Notification of a Decision to Grant Permission/Approval and the actual planning permission which is the Notification of Grant of Permission/Approval.
Checklist for Planning Documentation
Here are 5 good things to check in relation to planning documentation:
- Is it a final grant and not just a notification of a decision to grant?
- Does it relate to the property you are buying?
- What is the expiry date of the permission? (A planning permission generally lasts for 5 years).
- Was the development carried out within the lifespan of the permission?
- Take a close look at the conditions of the permission, especially the financial conditions (if any).
The key questions to ask when buying are:
- Is there planning permission?
- Were building regulations or building bye-laws complied with?
- Is there an architect’s certificate confirming compliance with planning permission and building regulations/building bye-laws?