Enforcement, Compensation, and Acquisition in Irish planning
In this material I cover three aspects of planning practice as described in the planning system: (1) enforcement, (2) compensation and (3) acquisition.
Galligan, E. (2002) Compulsory Acquisition of Land, Irish Planning and Environmental Law Journal, 9 IPELJ 67/.
Grist, B. (1999) An Introduction to Irish Planning Law,
Grist, B. and Macken, J. (eds) (2003) The Irish Planning Law Factbook, Thomson, Round Hall.
O'Donnell, M and O'Sullivan, P. (2001). Irish planning law and practice. Supplement 2001, The Planning and Development Act 2000 / by A&L Goodbody, Planning and Environmental Law Unit.
The requirement to obtain planning permission before commencing development is supported by a range of statutory sanctions. Not only did the 1963 Act impose the obligation to obtain planning permission, it provided that a person carrying out unauthorised development would be guilty of an offence and it has always since been open to planning authorities to take action against developments:
The 2000 Act simply says (section 151): Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.
The two main unauthorised developments are those:
1. for which no permission has been granted or for which permission has been granted, where any condition has not been complied with.
2. for which permission has been granted, where the development has not been or is not being carried out in conformity with the permission.
Require such steps as may be specified in the notice to be taken within a specified period, including, where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, in so far as is practicable, the restoration of the land to its condition prior to the commencement of the development,
As prosecution and conviction do not secure the proper planning and development of the area but merely the punishment of wrongdoers, planning authorities were also given power to implement planning controls by means of Enforcement Notices which require developers to conform to the planning code.
Initially, control of unauthorised development was solely a matter for planning authorities which were not required to take action in all cases, but were given the power to serve an Enforcement Notice if they decided it was expedient to do so. If legal proceedings were required on foot of the matter these were a District Court matter. However, District Court judges were reluctant to convict landowners who pleaded that they had been unaware of the new requirement to obtain permission. Landowners tended to explain that on receiving the Enforcement Notice, they had applied for permission to retain the development as constructed and were confident of getting it. Even, if the landowner’s proposal was refused and appealed this process could go on and on. The system could also only levy small fines.
Finally, recognising that Enforcement Notices were ineffective in controlling unauthorised development of a serious nature, the 1976 Planning Act created a new and important form of enforcement action: the planning injunction (this is now located in section 160 of the 2000 Act). The most significant aspect of a planning injunction actions is that it is available not only to the local authority, but also to the general public, irrespective of whether they (1) have an interest in land or (2) are able to claim to be suffering particular damage from the development in question. Injunctions are designed to be obtainable quickly. The jurisdiction for injunctions was vested in the High Court, which took a much stricter approach towards breaches of the planning code than the District Court had done. Failure to obey an injunction constitutes contempt – an offence punishable by imprisonment. Planning injunctions were a significant addition to the mechanisms for planning control.
Whether or not permission has been obtained, the court can grant both mandatory (An injunction that compels the defendant to do some positive act rather than simply to maintain the situation as it was when the action was brought) injunctions (requiring something to be done) and prohibitory (An injunction that prohibits the defendant from taking a particular action and maintains the positions of the parties until there is a hearing to determine the matter in dispute) injunctions (preventing something being done), even if the developer/landowner can’t be identified, and, in so far as is practicable, order that land be restored to its condition prior to the commencement of the unauthorised works or change of use. It may also require that any that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
In other words, it is strong enforcement mechanism: “the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.” (s.160 (2))
A planning injunction can now be applied for in the Circuit Court as well as in the High Court, which opened the remedy to a section of the general public who would have found the High Court’s costs prohibitive.
The 2000 Act has set a time limit of 7 years for this type of statutory injunction (from when such development began, it’s more complicated than this!).
Introduced first in 1976 and now included in the 2000 Act (section 152), Warning Letters are meant to strengthen the powers of planning authorities to take action against unauthorised development by introducing a power which enabled them to take action at an early stage. A Warning Letter may be served on a landowner: (1) where it appears unauthorised development is being or is likely to be undertaken, or (2) where a representation has been made in writing to a planning authority about unauthorised development. Such development can be small or big, for example, the removal or damage to a tree or feature required to be preserved as a condition of a planning permission.
So when will the planning authority issue one? The planning authority if it feels the development is non-trivial or minor, will issue a Warning Letter (Section 152 of the Act sets out a new procedure for this), within 6 weeks from receipt of representation.
The letter brings the breach or apprehended breach of the planning code to the landowner’s attention and sets out exactly what must be done to comply with the legislation (discontinuance, non-commencement or protection, as appropriate). It warns the landowner to take adequate steps to ensure compliance and that proceedings may be brought against him if he fails to do so. Copies of the notice may be given by the planning authority to any other person concerned with the matter, such as an employee or sub-contractor.
Decision on enforcement
The 2000 Act also introduced a follow on procedure; Section 153 provides that planning authorities must investigate the matter subsequent to issuing a Warning Letter, to enable it to make a decision on whether to issue an Enforcement Notice (if it does so, it must do it in 12 weeks - The Service of an Enforcement Notice, to be issued within 12 weeks from the date of issue of the Warning Letter.). It also now has to provide the reasons for the decision – these are detailed in the planning authority’s planning register.
Note: In cases of urgency, planning authorities can still issue Enforcement Notices without the warning letter procedure (Section 155).
The 2000 Act therefore regularised Warning Letter and Enforcement Notice procedures into one. Generally the decision to issue an Enforcement Notice is now made after the Warning Letter procedure except in emergency cases.
There is a procedure involved in serving and processing these notices set out in section 154 of the Act. The important point is that if the person served does not comply within six months (or longer, if specified), i.e. the required steps have not been taken to right the situation, the authority can take action. The penalties are high: up to 10 million euro and 2 years in prison (Section 156 & 157). The Enforcement Notice procedure remains the most common way of dealing with unauthorised development.
Note: For more details access: http://www.irishstatutebook.ie/ZZA30Y2000S154.html
The principle of planning compensation is that, if the value of an interest in land is reduced as a result of a planning decision, the person having such an interest is entitled to be paid, by way of compensation, an amount representing this reduction in value. The reduction could arise from either a refusal or permission with onerous conditions
The 1963 Act had to be drafted in the light of the rights to private property contained in Bunreacht no hEireann (1937). Article 43 guarantees to pass no law attempting to abolish the right of private ownership, while recognizing that the state may delimit the exercise of private property rights by law in the interests of the common good. Compensation was provided for in Part VI of the 1963 Act, with very few exemptions. The upshot of this was that landowners whose interest in land was reduced in any way were entitled to compensation.
Over a number of large-scale court cases in the 1970s there was a gradual awareness amongst developers that any purchase of land could lead to a valid compensation claim if it failed to lead to permission for development. And planners worked in the shadow of potential claims arising from their decisions. Planners got used to relying on the small number of non-compensatable reasons included in the Act (traffic safety, public health, etc.). Development plan policy didn’t get a look in.
In the early 1980s Dublin County Council paid out £1.871 million to Grange Developments and in 1986 24 acres at Roches Hill in Killiney, bought for £40,000 received £2.375 million in compensation for refusal of residential development (in his decision, the judge felt this was un-constitutional). It is interesting to note how regardless of the size of compensation payout the authority does not become the owner of the land.
Planners and lawyers began asserting the opinion that a change in the Planning Acts, eliminating payment of compensation in cases which contravened zonings was required. The argument was made that a development plan, which provides for the control and encouragement of development in a manner benefiting the community, represents the embodiment of the common good. And, that limiting the right to develop in contravention of such a plan was justified, without compensating the landowner for loss of the development value of the land in question. This represented a fundamental shift in attitude from the pre-eminent position given earlier to every aspect of the rights of land ownership.
In the 1990 Local Government (Planning and Development) Act, which has effectively been re-enacted in the 2000 Act, the balance tipped in favour of statutory planning control, and non-compensatable reasons were widened. Developments which contravene a zoning no longer attracted compensation. If a zoning is changed, developers have five years to come forward with alternative proposals which would have been acceptable previously (they are protected from what is called down zoning) and if refused could expect compensation. An examination of the full list of non-compensatable reasons for refusal contained in Part XII of the 2000 Act indicates the now well recognised importance of the development plan as a basis for the restriction of property rights.
The 1990 Planning Act also introduced new valuation rules for the assessment of planning compensation. The size of awards pre-1990 resulted from compensating landowners for potential loss – the loss of value which could have been realised if the permission had been granted. The current valuation rules are specifically designed to assess the reduction in value resulting from a planning decision. The reduction is the difference between the antecedent and the subsequent values of the land. Planning compensation continues to be assessed by the property arbitrators appointed under the property Values (Arbitrations and Appeals) Act, 1960 (stated in S. 184 of the Act). Under the 2000 Act (S. 183), claims for compensation must be made within 6 months (but the High Court can extend this in the interests of justice) and a claim for compensation on a matter can only be made once.
Notice preventing compensation
If a claim for compensation is received by a planning authority, the authority may within 12 weeks serve a notice preventing compensation (S. 192) to the claimant, stating that the land in question is capable of other development for which permission ought, in the opinion of the planning authority, to be granted. The effect of such a notice is to prevent the payment of compensation on foot of the claim. The notice continues in force for a period of five years, unless within this period it is withdrawn by the planning authority or annulled by reason of the specified development being refused (Section 192 of the Act).
Note: Please note again that this is a complicated section and we are merely touching the main aspects. See section 183 to 201 of the 2000 Act.
The Planning Acts do not, in themselves, contain any specific powers of compulsory acquisition. To compulsory acquire, planning authorities generally lean on other legislation and the compulsory purchase order procedure – this is a complex area, but the Act says: “The power conferred on a local authority under any enactment to acquire land shall be construed in accordance with this section” (section 213). A local authority is given this power for the purpose of performing any of its functions including giving effect to the functions of its development plan or its housing strategy. That said, the Irish Planning Institute on various occasions (Most recently during The All-Party Oireachtas Committee on the Constitution’s investigation into property rights (http://www.irishplanninginstitute.ie/printer_friendly_document.jsp?document=133) has called for planning authorities’ CPO related powers to be strengthened.
Planning authorities are however given wide powers to develop or secure the development of land. For example, they can enter into joint ventures with private developers and, generally, act as development corporations/property managers in their own functional areas, providing sites for the establishment and relocation of industries and businesses (including hotels, offices and shops), factory and other commercial buildings and any ancillary services considered necessary. When these powers have been used they have been used effectively, but they are not as widely used as might be expected. In Irish Planning Law and Practice, O’Sullivan and Shepherd say: planning authorities are still somewhat reluctant developers in their own right.
There are two areas in the 2000 Act where acquisition is used:
Firstly, in the development control section of the Act (Part III), section 45 allows for the acquisition of land for open spaces. This was brought in through the 1976 Planning Act to overcome a problem whereby developers would build housing estates, sell off the houses and the required open space would be left un-landscaped or at worst used as a site dump. Since 1976 if open space provision is an explicit or implicit condition of a permission, but is not provided appropriately, an authority can serve a notice on the developer instructing it to undertake works to put the problems right.
Eight weeks is permitted for compliance, after which the authority can institute proceedings to compulsorily purchase the land. A procedure must be followed which is quick and easy. An appeal to An Bord Pleanala is possible, within 4 weeks of receiving a notice. If there is no appeal, or the Board confirms the notice, the authority may acquire the land by means of a Vesting Order procedure. When the Order has been made the Order is sent to the registering authority under the Registration of Title Act, 1964, where the Planning Authority is registered as owner of the land in accordance with the Order.
Secondly, under Part XIV of the Act (Acquisition of Land, Etc), local authorities are empowered to use land vested in it for its own purposes, or it can appropriate land for its own purposes (this is where CPOs come in). It can do so permanently or temporarily and by agreement or compulsorily (using powers available under other statutes.
Land acquired by the authority may be sold, leased or exchanged by it, so long as the best use of land is achieved and the works proposed for the land are needed for the proper planning and sustainable development of its functional area. In some circumstances Ministerial consent is required for land disposal.
So, what might a local authority use such land for? Section 212 of the Act says a planning authority may develop or secure or facilitate the development of land for the following reasons:
· to provide for the improvement or construction of any road or public transport infrastructure or facilities.
· to provide, secure or facilitate the provision of areas of convenient shape and size for development;
· to secure, facilitate or carry out the development and renewal of areas in need of physical, social or economic regeneration and provide open spaces and other public amenities;
· to secure the preservation of any view or prospect, any protected structure or other structure, any architectural conservation area or natural physical feature, any trees or woodlands or any site of archaeological, geological, historical, scientific or ecological interest.
Further, a planning authority may also provide or arrange for the provision of:
· sites for the establishment or relocation of industries, businesses (including hotels, motels and guesthouses), houses, offices, shops, schools, churches, leisure facilities and other community facilities and of such buildings, premises, houses, parks and structures.
· factory buildings, office premises, shop premises, houses, amusement parks and structures for the purpose of entertainment, caravan parks, etc.
· transport facilities, including public and air transport facilities.
· it may maintain and manage any such site, building, premises, house, park, structure or service and may make any charges which it considers reasonable in relation to the provision, maintenance or management thereof.
A planning authority may use compulsory acquisition of land, in relation to these functions in order to facilitate the assembly of sites for the purposes of the orderly development of land.
CPO and An Bord Pleanala
Although we do not cover it here, it is interesting to note that in the 2000 Act, the functions which were conferred on the Minister for the Environment in relation to compulsory acquisition of land by a local authority under certain specified pieces of legislation as set out in s. 214 of the Act are now conferred on An Bord Pleanala. Those interested in this should read Part XIV of the 2000 Act where the involvement of the Board in the CPO procedure is laid out.
Refer to attachment: “Compulsory Purchase Order Procedures and Compensation for National Road Schemes”, produced by the NRA.
Note: Please note again that this is a complicated section and we are merely touching the main aspects. See Part XIV of the Act (Acquisition of Land, etc).
Produced in Nov. 2004.