Planning Myth #3 – If it's up more than 7 years you don't need planning permission ( @ccferrie mentioned)

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Planning Myth #3 – If it’s up more than 7 years you don’t need planning permission

Where does this come from?

The Planning and Development Act 2000 includes what is called a Statute of Limitations on enforcement orders.

This Statute of Limitations means that if you don’t have planning permission the state has a maximum of 7 years to issue enforcement from when you have started the development.

Below is the xact text from the Act:

(6) (a) An application to the High Court or Circuit Court for an order under this section shall not be madeβ€”

(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or

(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40 ) or, as the case may be, of the appropriate period as extended under section 42 .

It does not mean that you have been automatically been granted planning permission if you can manage to keep it quiet for 7 years!

What effectively does this mean?

1. You won’t be able to sell your property as a solicitor will be looking for the correct title on the property which includes a compliance with planning permission certificate. I was asked to do such a certificate for a property constructed in the 1970’s and it was patently clear that the property did not comply with its original planning permission. The sale was held up by the solicitor until a retention planning permission was granted; which incidentally is not a foregone conclusion.

2. You will not be able to make another planning permission until the problem is sorted; ie with a retention planning permission – again not a given.

Other problems beyond the scope of this post also exist.

So in summary, the state (through the council) cannot issue enforcement proceedings but your project is still unauthorised development and is effectively worthless until the matter is rectified.

Disclaimer:

All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

51 thoughts on “Planning Myth #3 – If it's up more than 7 years you don't need planning permission ( @ccferrie mentioned)

  1. just a minor point….”You *might* not be able to sell your property as a solicitor *might* look for the correct title on the property which includes a compliance with planning permission certificate”

    I know its tetchy, but most solicitors do not ask for compliance certs, besides, certs can be drawn up to opine on compliance with building regulations, without mentioning planning permission, which will satisfy most solicitors & purchasers alike..

  2. “Other problems beyond the scope of this post also exist.”

    The 7 year limit is relevant only in certain cases and, as far as I can determine, is not relevant cases where permission was sought. Please read the extract from the Act below. If anyone knows of any recent amendments they might follow up.

    The LA is restricted to 7 years from the date of commencement of the offense ONLY in relation to unauthorized development for which permission was not sought. Personally I think this is badly worded law since works can be carried out surreptitiously, but that is another post.

    If you sought permission and didn’t build compliantly, it can be 12 years or more depending on whether extensions had been granted to the original term, which is usually 5 years. This blows the mythical 7 year limit out of the water.

    Even this is not written in stone depending on the circumstances. If the unauthorized development relates to a use of land, there is may be no time limit.

      1. Hi Mark, you’re very welcome. πŸ™‚

        Looking the other way and not helping is not good practice.
        Its important we all maintain the standards of the profession.

        We need to support one another to revitalize our profession.
        You’ve put a lot of effort into your blog and your regular posts.

        Keep up the interesting work πŸ™‚

        Michael.

  3. Hi both of u seem to know this area very well, I have a situation where I am buying a summer home and there was two bedrooms built on the the back of the house without planning. The House was originally a small old two room cottage. The extension is over 40sqm and only a small part of the rear can be seen from the road.. The extension was built very much in the style of the original cottage. Infact it looks like two cottages joined back to back. Thats the best way to describe it. The current owners are now living in Canada and want to sell as is and get us to apply for planning retention. The extension was built/completed in June 2006. I would appreciate your advice.

    1. Hi Jessie

      If the house has been extended with unauthorised development then it is not compliant with planning. You take a risk whether you buy it in this situation; the risk being that the extension could be demolished if there’s a complaint from neighbours etc… I’m surprised that the solicitors will allow it to be sold in this way; they have got very tough and they require the title of the property to be perfect. Is there a certificate of compliance with planning permission? Is so it appears to be incorrect.

      Also, the seller should get the retention in order to get title in order – however another buyer may not care about this and you lose the purchase

      Hope this helps

      Mark

  4. Hi I am in the process of buying a house paid a deposit got a solicitor planning permission was granted in 1999 its up to roof level first fix & windows frames boarded up, contacted planning in Monaghan CC and have informally being told that this structure will have to be pulled down & planning resubmitted. I will be officially speaking to a planner on Tuesday morning and will find out their official stance. Just wondering about retention permission is it an expensive avenue? Can I complete build putting in windows, septic tank following original terms of the planning permission following the statute of limitations? Steve

    1. Hi Steve

      A tricky situation…

      It is an infringement of the planning permission that it was not completed during the 5 years; this means that it should to all intents and purposes look finished. We had a property in the same situation where Enforcement was involved; we negotiated with the Enforcement Officer (when it was escalated to him by the planner) to fin ish within a reasonable time. The level of completeness was roof on, windows/doors in & plastered – it could be worth your while discussing the situation with the Planning Enforcement Officer to see what his/her guidance could be.

      When you’re in with planners ask for the planning application form and retention fee guidelines – this will give cost on retention. It should be less costly than a full design as whoever submits the actual application draws what is there on the ground.

      best of luck

      Mark

  5. Retention for what and permission for what? Are you sure you aren’t talking about 2009 and not 1999 as you’ve written above? If it was partially completed in 1999 you might be looking at at demolition and rebuild as the Part L detailing from slab and foundation up are unlikely to be compliant with the current building regulations. If you are talking partial completion in 2009 it might not be too bad, but because the house was never completed you need to discover which building regulations you are building under. With a permission needed to revitalize it issuing after March 2014 I think you might be wholly under the new Building Regulation and that is a fare more onerous proposition. Luckily Mark has achieved a recent successful initial track record in getting a commencement notice lodged so perhaps he can offer some advice. He or you might also pose this question as a conundrum over on the Building Regs Blog. q.v.

    1. Hi Michael

      Thanks & thanks for kind words. As I noted at beginning of post it’s a tricky situation and what may be ‘law’ may be different when applied ‘on the ground’. I have had a few cases when situations such as this have gone to enforcement and the matter is resolved in a way it is the best for all parties that may not be ‘legally correct’.

      Thanks again

      Mark

  6. Hi,

    Just after a bit of advise… Im currently selling my house which had a fourth bedroom built on top of the garage (which is attached to the house), this was done nearly 40 years ago and no planning permission can be found, a potential buyer has picked this up and made an offer of nearly 15k lower than the asking price. I had no problems buying the house 5 years ago and specifically asked my solicitor about the extention which she said is ok! Obviously I have declined the offer but do I need to do anything regarding the extention or just hope it isn’t picked up again?

    Thanks
    Andrea

    1. Hi Andrea

      If the bedroom is visible from road then it sounds like you need a retention permission. If an extension at the back within specific conditions not visible from road then you’ll need an exempted from planning permission certificate. If you’re closish to me then give me a shout

      Mark

  7. If the bedroom was added 40 years ago and the building is older than this and there was no enforcement action taken then I would be a little concerned about seeking retention because the local authority are not obliged to grant retention permission.

    As the development was previously unauthorized and its been erected more than 7 years and assuming the law hasn’t changed since it was quoted at the top of this thread, then it may be that your 4th bedroom is free from enforcement action by the local authority.

    In terms of property, people (including solicitors and purchasers) want to know if something can adversely affect the price, the building proper and the sale.

    An extension which adds space and amenity to a property is unlikely to affect the sale unless it is badly built, of poor appearance or else vulnerable to enforcement action. If it is not vulnerable is this way an architect or planner may choose to issue a Letter of Comfort citing the relevant law or regulation to the owner.

    These days people are likely to use anything to knock down the asking price, but such a letter may deter them if it is on file with your solicitor. Get professional advice on your asking price though. We did and we discovered that our asking price was unrealistic, given the properties in sale locally and the market at the time. Its a balancing act.

    If however you are getting stonewalled by solicitors on all sides, that becomes a different matter and then the only courses available to you are (i) to wait for a buyer who accepts what you are offering as it is or (ii) seek retention permission. Both options will have a time factor and on a rising market this is no bad thing if you can afford to wait.

    In such a case it would be wise to retain an architect to negotiate the permission with the local authority as far as this can be done and minute the meetings. That way you can gauge your realistic chance of getting permission. I am sure that Mark can handle all that,

    However even with this wise approach you can be derailed by others who may appeal any favourable decision that might issue

    They can fall into several types. The busybody, who pokes their nose into other people’s business for the sake of it. Someone with a grudge who simply wants to pay it back. Someone who intends to extort money or favours or goods from you who will withdraw the appeal if you acceded to their demands.

    So it is essential that before you embark on any retention permission you fully research the current development plan requirements (and find any loopholes or incentives that may help), discover relevant recent planning decisions and any conservation directives coming down the pipe from Europe.

    Craft your application for permission in terms which will help it succeed taking all these things into account. Be prepared to fight an appeal.

    Again a competent professional like Mark can assist with all of this.

    One word of warning. You may get a buyer who will seek to obtain retention themselves OR you may wish to include the buyer’s particulars in your application for retention to smooth the way. A contract to purchase consequent to planning permissions may be required to lock the person into this permission. I am not sure how constitutional this would be on the part of the local authority but something similar used to be impose in rural areas.

    The point being that the retention permission might be assisted by the eligibility or otherwise of the prospective purchaser. That is the way certain provisions are framed in some development plans – for example Donegal. Someone from the area returning to live in the area if it is in the West. Or someone bringing investment or employment to the area. But don’t take my word for this – the Donegal Plan may have changed since I last looked at it so research must be current and relevant to the case at hand.

    Someone from Dublin looking for a holiday house may not be viewed so favorably. These are possibles, and each development plan is likely to be different in how it addresses these matters. Again a competent building professional like Mark should be well able to guide you through this maze.

    Hope this helps.

    1. Hi Michael

      All great advice & many thanks for kind words.

      Should also say πŸ˜‰ :

      Disclaimer:
      All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

  8. Hi there,
    We are just about to purchase a property which has had a large 2 storey garage built to the rear of the house without planning consent. A previous survey stated that there had been two stone sheds on the footprint of the new garage and it had been erected more than 7 years ago, so there would be no problem now with enforcement etc.
    My only worry being that could this have any future implications should we choose to sell the property and would this prevent us from extending the house itself at any point in the future?
    Regards.
    Debbie

    1. Hi Debbie

      It could be that any solicitor for person purchasing would require a retention. Some however may not! If you extend house in future you could include a retention on the garage

      Mark

      Disclaimer:
      All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

  9. Help!
    I got planning permission in 2001 for a small two story development in the west and my architect was advised by the fire officer that a small porch taking two stairwells to two apartments overhead would need to be constructed. My Architecct drew plans for same and he assured me that planning was not needed for this “extension to the front of the building. The porch was built as part of the whole building in 2001. Now in June 2015 a neighbour has objected to the porch and written to the Co Council.
    I have a cert of compliance stating building is substantially compliment but have a solicitor who is not accepting that and is insisting I go for retention. Is the porch an exampt structure under the act? It is aprox 2m wide and 3m long.
    Where do I stand?

    1. Hi Francis

      Exempted development is only 2m2 for a porch; your sounds bigger (6m2); sounds like retention required.

      Mark

      ps
      Disclaimer:
      All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

    2. Francis, you may NOT need a retention permission as it appears from your comments that more than twelve years has elapsed since you built the porch. Your neighbour had fourteen years in which to object and it seems he or she did nothing. You could do with having a competent professional talk to the local authority on your behalf and ask a few pertinent questions to establish the position, or you could take this on board and do so yourself.

      1. Hi Michael

        Yes true Michael and great advice on getting someone to look at it. problem is that when solicitors dig in their heels and are asking for retention – what can you do?

        Mark

        Disclaimer:
        All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

  10. Hi Mark,

    I lived in a small 3 bedroom timber frame house built on family land, planning permission was never sought. There is proof that it was here 10+ years ago and I would like to go for retention, I worry about looking for retention and being told to knock it down. Just wondering where I stand.

    1. Hi Evonne

      Do you need to sell it? Is anyone asking for retention? If neither of these my unofficial advice is not to get retention as there’s no guarantee it’ll be passed and it opens up the opportunity for Planners to ask for a heap of stuff

      Disclaimer:
      All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

      Mark

      1. I can’t reply to you other comment Mark so I am replying here to your question “what can you do?” as if Francis had asked it.

        = = = = =

        You can ask a suitably qualified and competent persons (such as Mark) to issue what is called a “Letter of Comfort”.

        Basically this letter sets out the facts of the matter and planning law as it pertains to these facts.

        In the present case, the development cannot be called Exempted because of its size, as Mark noted previously.

        However, if it is up (i) more than 7 years or (ii) more than 12 years, “it appears not to be subject to Enforcement Action” whether it is considered as (i) done without permission (7 years) or (ii) done by permission (12 = 5 + 7 years).

        The Letter of Comfort should end with this comment above or something like it. It doesn’t claim something that is untrue, and rests on statute as it stands now so it seems fairly secure. One thing you must be sure if is the date of completion.

        As I said before, get a competent person to review the position, check with the local authority and then issue the letter. This person should be independent from you – not a friend or relation.

        A solicitor then has to accept this letter of comfort or reject it. This is normally part of the maneuvering that happens when someone sells on.

        I echo Mark’s concerns about seeking retention. You do not seem to be on a level playing field. One neighbour has stated concerns that suggest you will be appealed at the very least.

  11. Hi
    I bought my 3 bed corner house over 10 yrs ago and it had a garage extension to the side with planning permission from 1976 .My query is at the side of my house/garage is a footpath and field , I have access to my back garden by use of a side gate which faces onto the footpath and field and I am not sure if this was included in the permission as this is 40 years old can the council now come and tell me to block it up , or how can I check if there was permission as the council don’t have the plans anymore as they are so old and if it is not on the plans can I put in for retention? ?
    Many Thanks
    Vicki

  12. Similar to a query above I am currently in the process of purchasing a house with a garage which is non compliant with planning. Permission was granted for a single storey garage in 2010 but the seller built a 2 storey structure (presumably on the assumption he would be there long term and could ride out the 7 years). Seller now has to sell house and has application for retention rejected in 2014. As part of sale price is to be discounted to take account of required remedial works to get garage in line with original planning. My query is as follows;
    – since more than 5 years has passed since permission granted (but not since construction completed) will planning permission have to be re-submitted even if structure is brought in line with original plan?
    – if I was to ‘risk it’ and hope nobody objects to the structure, when would the 7 year period start, from original 2010 permission or 2014 retention application?

    1. Hi Dara

      IMHO The planning would have lapsed and a new planning permission would be required

      The way I read it (and I’m not a lawyer), it’s 7 years from the date of the commencement of the development

      Mark

      Disclaimer:

      All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

      It is an offence to carry out any work that requires planning permission and the offence can carry very heavy fines and imprisonment. You can find out whether your work requires planning permission via a Section 5 Declaration to the Local Authority

      It is an offence for a person to carry out either works or a Material Change of Use to which the Building Regulations apply without notifying the Building Control Authority via a Commencement Notice. The notice must be given to the authority not more than 28 days and not less than 14 days before the commencement of works or the change of use. Once validated by the building control authority, works must commence on site within the 28 day period.

  13. Hi Mark,

    I am sale agreed on a detached house built in 2003. Our solicitor brought to our attention that the single story extension to the side (less then 40sqm) and also the shed out the back did not have planning permission. It turns out that the sellers had the original plans updated during the build and for whatever reason they were not submitted ot the council. They were as surprised as us to hear that there was planning issues. Our solicitor has told us that the sale can not proceed unless retention is sought. The sellers have been told by their solicitor that this is not required as it is past the 12 years. He insists that the house can be sold without retention. We do not want to lose the house so we are unsure what to do. The house is complete in that no building will ever need to be done (it has reached its potential) so planning will not be an issue in the future. Could you please advise as to what are our options?

    Thanks,

    Karl.

  14. Does the same 7 year rule apply to a business being operated from a residential house without change of use? We don’t know when the change of use actually began is the problem and how could the owner prove when the change of use occurred if the planning department of local council issued a warning letter. We have a noise issue coming from the business for last 7 years – tried reasoning with the man to no avail – only this year did we finally lodge a complaint to the council regarding unauthorised development.

  15. First off great questions and info here but my case is a little different..

    I’m buying my dads house off him which was built in the mid to late 70’s and the county council is now telling him that there was never plan permission for the house… My dad is certain that there was and also he got the mortgage off the county council for the house so this surely means there was planning at the time???

    I just paid our local county council €250 for them to try find it and still nothing..

    What process do I need to go through to be able to buy the house?? Have wasted months trying to find the deeds and planning at this stage..

    Thanks

  16. Hi Mark, wondering whether you know how is best to deal with this situation. We are in the process of buying a Protected Structure. Our solicitor is not happy with the planning history and won’t give a full title. Obviously we (and the bank!) want a full title. There is a 2011 planning permission for an extension and conservation works, for which we have architects cert of compliance and the solicitor is happy with these. However, there were bathrooms built in the corridors on both floors as well as other interior works – kitchen etc by a previous owner pre- 2011, for which there was no planning permission. Since this is a protected structure only the County Council can really say what constitutes an exempted development. The seller has engaged an architect who produced a report stating his opinion that the works most likely were exempt (especially given the successful planning permission in 2011) but that he has no authority to provide a clean cert of exemption when it comes to protected structures. Our solicitor is not happy with this still. Is there any mechanism other than seeking retention permission in order to satisfy the solicitor that the works were exempt?

  17. Hi

    We moved into a corner house in 2010 and built a wall up to 8ft surrounding the house, lowering down to 4ft as it curves around to the house

    We never applied for planning permission but have never received any problems from neighbours etc ( in fact, they welcomed it )

    There was an original wall that we knocked down ( approx 2ft high ) in place.

    If we were to sell, could the above be an issue?

    Also, if we were planning to extend, could any of the above be an keep if we needed planning permission for future projects?

  18. Hi have put a deposit down on a 4 bed house that has a granny flat I have been informed today that the granny flat had no planning permission but has been there more than 7 years? how would this affect the banks issuing a mortgage for such a property ? and would this have any further issues down the line ? unsure of what to do. any information on this would be greatly appreciated thanks adrienne

    1. Way back when I was advising my local residents association I seem to recall there were issues with granny flats and these seemed to pertain to title, access, density, compliance and safety. Not all of the issues were dealt with by me at that time, but I think title, access and density came up.

      If you create a granny flat, is this the creation of a separate title on the property?
      If this is separate, does it have independent access to and from the property?
      If the flat is separate does it have its own services/washing/cooking facilities?

      If all the above are true, it seems you have just doubled the housing density!

      You see? It get a bit messy, especially if there was anything legal done.

      That is for YOUR solicitor to have discovered, not the bank’s solicitor.

      In terms of compliance, if the dwelling is wholly separate in title, I believe this should be reflected in the degree of fire, services and structure, much like a semi-detached house should be. If this cannot occur, it should be separated (including sound rating and all other regulations) in a similar manner to a duplex.

      But if one is build over, or partly over the other, then – just as a Duplex does – both occupancies may need the benefit of a Fire Safety Certificate.

      This requires YOUR professional (not the bank’s professional) to hold discussions with the Fire Prevention Section of your local authority and report back to you.

      This is not the bank’s problem. This is YOUR problem and you need to own it and deal with it.

      This comment has not even touched on inventilated gas fires, build up of carbon monoxide, security risk of ground floor accommodation, lack of compliance with Part L of Garage Conversions et cetera

      I will say this however.

      It is not proper procedure to seek professional advice on an online forum after you have paid your deposit.

      This kind of approach, where professionals were not retained in a timely manner to inspect the properly in sale on behalf of purchasers was what led DIRECTLY to the disasters with residential accommodation we see reported now in the press.

      As for consequences, who can say – you need a competent professional like Mark to inspect and report back to you at least at the level as described above.

  19. Hi, I had a one storey extention built to the front of my house. I exceeded the size of the extension by 10% there for not complying with my planning permission. Seven years after the build I had an architect look at it and grant me an opinion of compliance. I have now agreed to sell the house but the buyers solicitor isn’t satisfied with my current cert. He wants a building regulations cert also. I’ve agreed to obtain this but he’s now saying he wants me to apply for retention and lower my price. Because of all the delays I am going to loose the home I was hoping to purchase. If I pull out of the sale with this couple would other soliciters be satisfied with the Certs I have? The extension is up 12 years. Also if I was forced to apply for retention, what happens if my neighbour objects. He dislikes me immensely.

    1. Hi Tanya

      If you get the Building Regs Cert too then these should suffice although there’s nothing to stop next vendor’s solicitor also raising problem. A retention may be best option – the Planning Authority won’t instantly refuse if neighbour objects

      Best of luck

      Mark

      Disclaimer:

      All advice online is remote from the situation and cannot be relied upon as a defence or support – in and of itself – should legal action be taken. Competent legal and building professionals should be asked to advise in Real Life with rights to inspect and issue reports on the matters at hand.

      It is an offence to carry out any work that requires planning permission and the offence can carry very heavy fines and imprisonment. You can find out whether your work requires planning permission via a Section 5 Declaration to the Local Authority

      It is an offence for a person to carry out either works or a Material Change of Use to which the Building Regulations apply without notifying the Building Control Authority via a Commencement Notice. The notice must be given to the authority not more than 28 days and not less than 14 days before the commencement of works or the change of use. Once validated by the building control authority, works must commence on site within the 28 day period.

  20. Hi Mark – I have an apartment/ flat in a building that looks like it was built in the 60s / early 70s. Its one of those typical square buildings of apartments with flat roofs that you see around dublin inner suburbs. I have looked into selling the apartment and my solicitor has said that there may be an issue as there is no record of the builder applying for planning permission. When i purchased this apartment there was no issue at all raised around this. Should i be looking to apply for retention or does the statue of limitations kick in in this situation? Thanks, its just coming out of negative equity and would love to trade up but this is a bit of a blow to us.

    1. Hi Eoin

      You’ll need to liaise with solicitor on this; they won’t put anything through unless they’re happy which may involve a retention

      Best of luck

      Mark

  21. Hi Mark,
    we are sale agreed on the bungalow with loft conversion (sold as storage only). It has 4 velux windows to the side but they are considered exempt from planning under section 4(1)(h) of the Planning & Development Act ( confirmed by council planing department by email ).
    My question is does this property needs any certificate of compliance for the sale to go through? The vendors doesn’t have any paper work. Should they have a certificate of exception or any other necessary documents?
    Thanks

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