Building without planning permission - what are the risks?
Failure to comply with an enforcement notice within the specified time can result in a criminal prosecution and the imposition of a penalty, warns rural solicitor
Image credit: Irish Examiner
Section 152 (4) of the 2000 Act sets out what a warning letter must contain, such as a reference to the affected land and a statement that an unauthorised development has come to their attention, information of the making of submission, a warning that an enforcement notice may issue, an outline of the potential penalties, a statement that the planning authority may exercise its powers to enter land and inspect the unauthorised developments and an explanation that the recipient may incur the cost of enforcement proceedings.
Where there has been a breach of planning laws, the planning authority does not have the power to issue an enforcement notice without first having issued a warning letter.
Before serving an enforcement notice, it is important that the planning authority has allowed the party affected to make representations to it and that these representations are considered along with the original representations which caused the warning letter to issue. It should be noted that Section 155 of the 2000 Act does permit the issuance of an enforcement notice without a prior warning letter in cases where urgent action is warranted.
Once a decision has been made by the planning authority, the decision, together with the reasons in support of that decision, must be entered into the Planning Register.
The enforcement notice is important and the contents of same must be considered in accordance with the statutory requirements. It is mandatory that the notice complies with a prescribed form and failure to do so, will render the notice invalid.
The most important element of the notice is that it must clearly identify the category of breach that is being alleged and that it specifies both the steps required to remedy the breach and the specified time period within which the steps must be taken.
Failure to comply with an enforcement notice within the specified time can result in a criminal prosecution and the imposition of a penalty. In order for the prosecution to succeed, they must prove a number of matters by giving evidence in relation to the following:
- The issue of a warning letter.
- The decision was made as to whether or not an enforcement notice would issue.
- The service of an enforcement notice.
- The non-compliance with an enforcement notice.
As a defence to an enforcement notice to establish that the person took all reasonable steps to comply with such a notice. It goes without saying that every offence is different and the proofs necessary to secure successful prosecution will vary from one offence to another.
In relation to circumstances where permission has been granted, the limitation period of seven years does not run until the expiration of the planning permission. Enforcement action can also be taken where a person has failed to satisfy a planning condition concerning the use of the land.
You need to bring the letter that you have received to the attention of your solicitor and your architect/engineer to advise.
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