A further continuation of the ‘We need to build smaller blog post’ and follows up on James’ comment on the expense of resubmitting drawings when the bank lowers the mortgage offer and the house has to be reduced in scale.
The first step is to look at the Architects ‘Certificate of Compliance with Planning Permission’; it’s role and what it means.
This is the front cover of the relevant certificate that the RIAI architect completes (engineers will have different versions):
ARCHITECT’S OPINION ON COMPLIANCE WITH PLANNING
PERMISSION AND/OR EXEMPTION FROM PLANNING CONTROL
The key thing to notice is the actual title of the document ‘ARCHITECT’S OPINION ON COMPLIANCE WITH PLANNING PERMISSION AND/OR EXEMPTION FROM PLANNING CONTROL’. What the architect is giving is his opinion on whether the ‘Relevant Development’ is in Substantial Compliance with the Planning Orders. Notice that it’s not saying that the development has to be EXACTLY the same as what was granted, just that it is ‘substantially compliant’.
If we read further down in the document, there is a definition of ‘substantial compliance’:
“Substantial Compliance with the Planning Orders” means that:
[a] the Relevant Development is constructed in accordance with the said Planning Orders saving and excepting such minor deviations which in my opinion do not constitute a contravention of the proper planning and development of the area as expressed through such Planning Orders and the Development Plan, and
[b] such minor deviations do not warrant the issue of enforcement proceedings by the relevant Planning Authority as provided for in the Planning Acts.
Again it comes back to the architect’s opinion on whether any ‘minor deviations’ ‘do not constitute a contravention of the proper planning and development of the area as expressed through such Planning Orders and the Development Plan’
The problem arises in the definition of this ‘substantial compliance‘ as one architect or engineer could have a difference of ‘opinion’ to another.
So what can you do? You could send the drawings to the County Council for their advice on whether the deviations are non-compliant. My guess is that most wouldn’t want to take the responsibility and will simply request a retention. I’m working on a project at the moment where exactly this is happening, so I’ll keep you posted on the results.
Blog post to follow is on the role of this document and we’ll then return to the original question of what you can do when you can’t build the house you’ve got planning for…
I’d be very interested in comments from architects/engineers on their stories concerning this matter…
Hi Mark, I’m a planning consultant and I’ve come across this situation before -either before the development has taken place or after when the Council have issued warning letters and / or requests for retention of the changes.
The provision in the planning legislation which allows for immaterial deviations, as you refer to, often appears to be interpreted differently across planning authorities. However there is a process whereby you can seek an official opinion on the changes from the Authority (and appeal to the Board if you disagree). These are Section 5 Declarations (or Referrals).
Referrals made by ABP are available on their website and are often a good reference source in relation to these type of queries, the usual question being whether the works are development / exempted develope
Independent planning consultants do not have the same forum to provide planning compliance certificates akin to the RIAI – we can provide a professional opinion – but maybe this is something which should be considered in the future reform of the planning system.
Excellent comment, you’re right a Section 5 makes excellent sense.
Hi,I have a query related to a design build contract.
To acheive cost savings the developers contractor has changed an architects spec for curtain walling to a different system, similar to that specified in the planning permission. They also deleted the entrance canopy and ramp. What options are available to the architect in relation to issuing opinions on compliance? Any suggestions would be appreciated…Thanks, Ian.
Hi Ian
Not really my area as don’t get involved on Design-Build, sorry
Mark
Hi Mark,
Do you know if it is possible to issue an Opinion of Compliance when all proposed works have not been completed as opposed to “minor deviations” that may have occurred during the build?
E.g. the main structure has been completed except for an ancillary room/section.
Technically the building is not in full compliance with the PP drawings until this room has been completed but can a “qualified” Opinion (if such a thing exists) be issued and a standard Opinion be issued if/when funds become available for completing the building as per the original PP down the line?
Thanks in advance for any advice,
Ray
Hi Ray
Great question, I’m now putting ‘phases’ onto drawings that deal with such an eventuality.
I’m sure you’d get someone to do a compliance cert for this and I am sure that someone else would disagree with it. As you say, technically it’s not strictly in accordance with the pp
Mark
How do I find out if a house I’m looking to buy (repossessed) has a certificate of compliance? Should it be on file online with the council planning documents? I have checked them online and I didn’t see a cert of compliance.if I need one to be done, what kind of € am I looking at? Planning was granted for a garage (detached) that wasn’t finished and the front windows on plan were bay, but only standard flush with building was built.
The solicitor should have it on file, if not then getting one done is normally with architect and depends on area; I can help you if it’s in Connacht.
The bay windows don’t sound compliant; Retention planning permission may be required
Mark
Hi Mark
I have a planning issue and Im interested in an other architects opinion. My planning drawing shows a dormer rooflight set 150mm from the chimney. The contractor has gone ahead and built it around the chimney, up to party wall. My issue is with the cert of compliance and whether it is in substantial compliance? I would be interested to hear your opinion. Thanks!
Hi Ciara
Has your architect/engineer certified or is happy it’s compliant? Then it’s a matter of if you ever sell it or there’s a complaint from the public whether another architect/engineer in their opinion thinks it’s compliant. And then! if it gets to court the judge isn’t bothered about trivial matters so it’ll be down to him/her to decide!
Mark
Hi there,
I’m looking to buy a house and there is no cert of compliance as the sightline on the house is not I’m compliance with the plans. The house is 10 years old and down a private lane with 3 other houses in it. The plans stated that where the top of the lane met the roadway, the sightline to the left was to have a view 3m back from the main road, 80 view to the left and finished off 300mm high in grass. This is not quite the case. Am I still going to have to stick rigidly to these stipulations in order to achieve compliance on this issue and if the works were not carried out am I to understand the council could not serve an enforcement on the property as the permission was granted 10 years ago.
Tanya
Hi Tanya
The Statute of limitations is 7 years so you’d be OK with Council but you could have difficulty selling in future as it’s not compliant. What does your solicitor think?
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
Hi Mark,
I am thinking of buying a house with planning approval in 1996. There is no cert of compliance with only a slim possibility of an ”opinion on compliance” being forthcoming at some point.
As I would like my family to be able to sell this property at some point in the future, would you recommend I walk away from this house purchase??
Your opinion would be very much appreciated
Adrian
Hi Adrian
You could ask the seller to provide a Cert or get him to get a retention permission?
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.