A planning enforcement action may be taken against unauthorised development. Enforcement Action is most commonly taken by local authorities such as County Councils but can be taken by any person under Section 160 of the Planning and Development Act 2000 (soon to be section 351 of the Planning and Development Act 2024). Enforcement action under Section 160 is more commonly known as a planning injunction.
Unauthorised development is defined in the Planning Acts as the carrying out of any unauthorised works or the carrying out of any unauthorised use for which planning permission is required.
Planning Enforcement action is taken to
- prevent an unauthorised development or
- use or
- to return the land to its original state.
- It is an offence to carry out any unauthorised development under Section 151 of the 2000 Act.
- Enforcement action cannot be taken against development which is considered ‘exempt’ under Section 4 of the 2000 Act.
STEP 1 – WARNING LETTER
The first step to taking planning enforcement action for the local authority is to issue a warning letter.
Where a complaint in writing in relation to unauthorised development is made to the local authority, or if the local authority becomes aware of any unauthorised development, they must issue a warning letter to the owner or occupier of the land or any other person carrying out the development.
If the development is trivial or minor in nature, the local authority may, in their discretion, decide not to issue the warning letter.
If the warning letter is being issued on foot of a written complaint, the warning must be issued within 6 weeks of the complaint.
The landowner/occupier/person carrying out the development has 4 weeks to make submissions or observations in relation to the warning letter.
The local authority does not have to issue a warning letter and may proceed directly to enforcement action under section 153(5) of the 2000 Act in cases of urgency. However, where the local authority has commenced with a warning letter, it must follow the statutory timelines set out in the Act.
STEP 2 – ENFORCEMENT NOTICE
Where a warning letter has issued, the local authority has 12 weeks to decide whether to issue an enforcement notice or make an application for an injunction under section 160.
The local authority must take into consideration any representations and submissions received in relation to the development.
The enforcement notice takes effect from the date it is served on the owner/occupier/person carrying out the development.
The planning enforcement notice will require that steps be taken within a specified period. This period cannot be longer than 6 months.
The enforcement notice must contain certain information as set out in the 2000 Act.
If, after serving the enforcement notice, the local authority becomes aware of another person involved in the unauthorised development, the notice must be served on the new person and the time period for compliance must be extended as necessary to a maximum of 6 months.
The enforcement notice ceases to have effect 10 years after the date of service.
STEP 3 – COURT ENFORCEMENT
If the planning enforcement notice is not complied with within the period specified, the person on whom it is served may be prosecuted. Any person who knowingly assists or permits a failure by another to comply with the enforcement notice may also be prosecured. This offence is criminal in nature.
The local authority may bring summary proceedings in the District Court on foot of failure to comply with the enforcement notice.
Summary proceedings must be commenced within 6 months of the date the offence was committed or within 6 months of the date there was sufficient evidence to justify proceedings, whichever is later.
Where the offence is committed by a body corporate and it is proven that the offence was committed with the consent/approval of a director, manager, secretary, member or other officer of the body corporate, that person may be prosecuted personally.
SECTION 160 PLANNING INJUNCTION
Where unauthorised development has been, is being or is likely to be carried out, an application can be made by any person (whether or not they have an interest in the land) to the High Court or Circuit Court to require the person carrying out the development to do or cease to do anything the Court considers necessary.
The Court may order that the unauthorised development is not carried out, that land is restored to its original condition (as far as is practicable) or that the development is carried out in conformity with any permission.
An application under Section 160 must be made within 7 years of the date of commencement of the development or use.
STATUTE OF LIMITATIONS – THE SEVEN YEAR RULE
No enforcement action (i.e. warning letter, enforcement notice or court proceedings) can be taken against a development which commenced seven years prior. (Section 157)CHANGES PROPOSED BY THE PLANNING AND DEVELOPMENT ACT 2024
Enforcement procedure is largely the same under the 2024 Act as in the 2000 Act but some additions have been made:
- The new Act specifically makes provision that the warning letter shall be withdrawn if no enforcement notice is served after the expiry of 12 weeks, however this does not preclude the service of a subsequent warning letter or an urgent enforcement notice.
- The new Act makes provision for the withdrawal of an enforcement notice by virtue of a grant of permission or other compelling reasons, however a withdrawal is without prejudice to the right of the local authority to recover their costs and expenses.
- The local authority may provide an extension of time to comply with the enforcement notice at the request of the person served with the notice if they are satisfied that the person has taken all reasonable steps to comply with the enforcement notice, that the notice will be complied with in a reasonable period and the extension is reasonable in all the circumstances.
The provisions of the 2024 Act relating to enforcement have not yet commenced. The 2000 Act will continue to apply until repealed.
The above is not legal advice and is for informational purposes only. We do not accept any liability for any reliance on this article and legal advice should be sought in all circumstances.
Please email info@setantasolicitors.ie or 01 215 0168 to book a consultation.
