UCC School of Law Enforcement PDF

Enforcement LW6101 Introduction to Planning Law Enforcement - Part 11 ss. 346 – 357 PDA 2024 Any person who has carried out or is carrying out unauthorized development shall be guilty of an offence - s.347 PDA 2024 Enforcement of unauthorized development Administrative - by EA who ar...

Enforcement LW6101 Introduction to Planning Law Enforcement - Part 11 ss. 346 – 357 PDA 2024 Any person who has carried out or is carrying out unauthorized development shall be guilty of an offence - s.347 PDA 2024 Enforcement of unauthorized development Administrative - by EA who are given certain enforcement powers under PDA Judicial - by court order  The effectiveness of planning legislation in controlling development is dependent on a proper system of enforcement Objectives of enforcement: Discontinuance of unlawful development & restoration of previous situation Ensure observance of all PP terms & conditions Police regulatory requirements for planning – effective deterrent Standing: Any person, regardless of interest, may apply to court for order to enforce: Stafford & Bates v. Roadstone – ‘every citizen is a watchdog for the public’ XJS Investments v. Dun Laoghaire – PP & conditions comprehensible Dublin City Co v. Liffeybeat (2005 HC) – where ambiguity, PA must first clarify Discretion: EA enjoys discretion retaking enforcement action (resources, local impacts, etc.) Court enjoys discretion in granting “planning injunction” under s.351 Time Limits Generally 7 years Exceptions to 7 year limitation period – s353(3)  unauthorised quarry development or peat extraction  where permission has been granted in respect of the development under Part 4. Exceptions to 7 year limitation period - Section 353(5)  Any condition of pp  Contravention of an enforcement notice Presumption that enforcement notice served or proceedings commenced before expiry of time period, unless proved otherwise by the defendant or respondent Functions of enforcement authority – s.348 general provisions General provisions concerning an EA’s powers and responsibilities concerning enforcement. Where unauthorised dev EA may: (a) serve an enforcement notice [subject to s.348(3) obligations] (b) apply to the court for a planning injunction; or (c) bring and prosecute summary proceedings in relation to an offence under Part 11 Functions of enforcement authority – s.348 … Where EA has reason to believe unauthorized dev - it may (a) carry out any investigations or make any inquiries that it considers appropriate; and/or (b) serve a warning letter. investigation is an informal or summary investigation - site visit, examination of planning history Administrative Enforcement Warning Letter - s.349 and general provisions s.348 In case of planning complaint of unlawful dev, s348(3) PDA 2024 obliges EA to investigate and issue WL (within 6 weeks as objective) - unless takes other enforcement action under Act or the matter is trivial or minor WL identifies land, dev in question; warns re EN, inspection, penalties, costs of enforcement, may make written submissions within 4 weeks; etc. -s.349(2) EA may serve WL on any person it believes has/is/intends to carry out unauthorised dev; has an interest in or is occupier of land or maritime site concerned; may otherwise be concerned with matters related to WL - s.349(1) EA can carry out investigations and communicate with any person prior to issuing WL - s.349(4) WL does not impose liability Administrative Enforcement Enforcement Notice - s.350 and general prov s.348 EA shall not serve enforcement notice w/o first serving WL unless Urgent Enforcement Notice Must serve as expeditiously as possible (and not later than 12 weeks of service of the warning letter or any notified extended period) S.348(6) PDA – In making dec EA shall investigate (where necessary), and consider complaint and submissions, any s.10 dec, any pp- decision within 12 weeks; consider original rep & submissions May decide not to issue EN where dev trivial or minor, not warranted hr to grant of pp, outside time limits, other compelling reasons Administrative Enforcement Enforcement Notice - s.350 and general prov s.348 Enforcement notice takes effect on day served - s.350(15) Any person who fails to comply with the terms of the enforcement notice commits an offence - s.350(9) - i.e. in addition to offence re any unauthorised dev EA may extend period for compliance on request of dev if satisfied that person has taken all reasonable steps to comply; the EN will be complied with within a reasonable period; and ext reasonable in circumstances - s.350(6) EA can serve EN on another person not served, after service of EN, if becomes aware that person involved in carrying out unauthorised dev - shall extend period for compliance - s.350(5) Enforcement Notice - s.350 and general prov s.348 Decision (& reasons) on planning register s.348(9) Decision (whether or not to issue EN and reasons notified in writing to all persons served with WL (developer & owner, occupier) and to person who made complaint - s.348(8) Administrative Enforcement Enforcement Notice Requirements strictly construed - Dundalk Town Council v. Lawlor ; formal record of decision & reasons (on planning register) required for JR – Dublin Corp v. O’Callaghan (2001 HC) EA cannot over enforce i.e. require steps that are not necessary to remedy alleged breach - Dublin City Council v Benqueues Ltd Broad discretion of EA, no JR in absence of procedural breach (or irrationality); but EA may not fail to make decision – under statutory duty to make decision once WL issued No statutory appeal (Commission) for recipient of EN – only JR; can only challenge re: Development not unauthorised (e.g. established or exempted use) Unauthorised dev immune (7 year time limit) Steps specified in EN go beyond the necessary (encroach on est use rights) Administrative Enforcement Enforcement Notice Withdrawal (whole of part) s. 350(12), EA satisfied by virtue grant pp EN no longer serves useful purpose or other compelling reasons Legal effect: Offence to fail to comply (or assist/permit); ‘all reasonable steps’ defence If specified steps not taken (within period), EA may enter and take steps EN particulars entered on planning register, also compliance with EN Administrative enforcement Enforcement notice 7 year time limit for prosecution: except unauthorised quarry dev or peat extraction - s. 353(3) or re breach of PP condition re use of land or maritime area - s. 353(5) Enforcement proceedings - presumption EN served, prosecution commenced before expiry of time period - unless proved otherwise - s353(6) in case of ‘abandonment’ recommencement is relevant starting date for immune dev, other potential impacts: Liquor licence / club reg.; public water / sewage services; planning compo reduced; landlord & tenant leg.; sale / borrowing; refusal of PP Administrative Enforcement Urgent Enforcement Notice Where EA considers it appropriate (e.g. proposed demolition of protected structure) may issue EN under s.348(4) without WL or formal investigation Judicial Enforcement Prosecution - S. s.347 – carrying out unauthorised development is an offence S. 350(9) and (10) – failure to comply with EN (or assisting / knowingly permitting) Against companies and/or officers of body corporate (personally) – consent, connivance, approval, neglect Summary offences, s. s.354(1) within 6 months or suff evidence - Class A fine and/or 12 months + further Class C fine + 6 months after conviction s.354(2) On indictment, s. s.354(2) within 7 years, €15,000,000 and/or up to 5 years and after conviction €15,000 each day and further imprisonment not exceeding 2 years Unauthorised structure - summary convict - fine not less than est cost of construction or €2500 whichever lesser Unauthorised structure - convict on indict - not less that est cost of construction or €15,000 whichever lesser Judicial Enforcement - Prosecution - s. 355 Normally liable for costs on conviction Under s.355 prosecution, rebuttable presumption of (non-exempt) dev!!! i.e Burden of proving dev exempted or the existence of pp on the accused - reversal of onus of proof Prohibition on stay/adj by reason of making s.10 dec or an application for pp unless special circumstances - s.355(8) No defence - def applied retention/retrospective pp - s.355(6) Defence - prove dev not unauthorised dev or defendant took ‘all reasonable steps’ to secure compliance with EN Various other offences created under PDA Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Standing: PA or any other person (regardless of interest) may apply to CC / HC Interim/interlocutary relief, may join co-applicants – Irish Wildbird Conservancy v Clonakilty Golf & Country Club (1996 HC); prohibitive/mandatory injunction May order any person to carry out works (including restoration, reconstruction, removal, demolition or alteration of any structure or other feature ) May grant orders against co. directors personally – Sligo Co Co v. Cartron Bay Construction Ltd (2001 HC); Dublin Co Co v. Elton Homes (large amount taken out of co.); Dun Laoghaire Corp v. Parkhill Dev. Ltd (negligence) Burden of proving dev exempted or the existence of pp on the accused - reversal of onus of proof - s.355 Judicial Enforcement - Planning Injunction S. 351 “planning injunction” may require: Unauthorised dev not carried out / continued Land restored to prior condition (as far as practicable) Dev carried out in conformity with any PP Section 351(3)(c) - no stay/adj - applic pp or s.10 dec but court can grant stay/adj where special circumstances - conditions to discourage delay on applic pp or s.10 dec including condit requiring the cessation or restriction of the development Applic for planning injunct shall not be refused solely because of grant of pp after commencement of proceedings - effective deterrence policy s.351(3)(g) - new reverse onus of proof - respondent must prove existence of pp or that dev was exempted Rules of court may provide for a s.351 order against unknown person Judicial Enforcement Planning Injunction, s. 351 PDA Strict construction of planning injunction provisions - Mahon v Butler ; An Taisce v McTigue Quarries (No 1) Court has wide discretion to grant s351 injunction but SCt has suggested there should be ‘exceptional circumstances’ before relief withheld - Morris v. Garvey Discretion more limited where breach of EU involved – EIA, AA Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Court may consider: Technicality / triviality of breach – O’Connell v. Dungarvan Energy Impact on applicant – Grimes v Punchestown Dev – not local res. Hardship to developer – Golden v Westport UDC – fire safety reqs. Conduct of dev – Curley v. Galway Corp – unauthorised landfill Conduct of applicant – O’Connor v. Frank Hetherington (1987) – funded by competitor; S. Buckhingamshire DC v. Perter – PA exercise function Public interest – Leen v. Aer Rianta – Shannon Airport; Stafford v. Roadstone – employees; Galway Co Co v. Connaught Proteins – p. health Awareness / attitude of PA – Grimes v. Punch. ; Altara Dev Ltd v. Ventola Delay - Grimes v Punchestown Dev Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Less Court discretion re question of compliance with EU Law (e.g. EIA, AA) Failure to comply with s. 351 order – committal for contempt of court and/or sequestration of assets 7 year time-limit applies Application for / grant of s.351 planning injunction doesn’t preclude EA enforcement action under Part 11 Permission not required for works required under Part 11 Planning permission is not required in respect of a development required by an enforcement notice or an order under - s. 351(7). Liability for costs of injunction Normal rule – courts have discretion regarding costs (Ord 99 RSC) – general rule is that costs usually follow the event (loser pays principle) unless there are ‘exceptional’ circumstances to justify departure from this rule – high bar Aarhus Convention – Art 9(4) – ‘not prohibitively expensive’ obligation The Environment (Miscellaneous Provisions) Act 2011 – Irish implementation of Art 9(4) ban on prohibitive costs in context of Art 9(3) proceedings to enforce environmental law S. 3(1) 2011 Act sets down special costs rule for certain specified civil proceedings – modelled on S50B PDA framework which governs JR Special costs rule applies to s160 PDA planning injunction proceedings Special Cost rule – s3(1) Environment (Miscellaneous Provisions) 2011 Act Default position – each Party pays its own costs The Court has discretion to award applicant costs of proceedings or a portion of such such costs, to the extent that the applicant succeeds Court also has discretion to depart from special costs rule and order costs in other specified circumstances Special costs rule protects the applicant seeking a planning injunction from the risk of an adverse costs order and the court has discretion under s3(1) of the 2011 Act to award the successful applicant costs to the extent that he/she/it succeeds. New Legal Costs framework for Aarhus cases S.351(7) expressly provides that the court shall, unless it is satisfied there are special and substantial reasons for not doing so, order the person subject to a s.351 order (a planning injunction) to pay the costs and expenses of the action, as measured by the court. But … Part 9 of the PDA 2024 - new legal costs framework for Aarhus cases - scale of fees for costs that can be recovered and the creation of an Environmental Legal Costs Financial Assistance Mechanism (means tested legal aid scheme) - Each party pays own costs - losing (eligible) Aarhus litigant may receive contribution from Legal Costs Financial Mechanism - Successful Aarhus litigant can recover costs from respondent but limited to scale of fees Main concern is the expected low level of scale of fees - diff in obtaining legal representation Designated regional enforcement authority - Section 356 new provision under which the Minister may designate a planning authority as a regional enforcement authority designate a number of enforcement areas and classes of development to be dealt with by the regional enforcement authority, by reason of the likely size, nature or effect on the surroundings of such development.