Whats your view?

Whats your view?

Postby Davids » Sat May 01, 2010 12:07 pm

Hi,

Have a situation at the moment that I would like to get other views/ opinions on. A client has applied to the local planning authority for permission to build a replacement dwelling on a rural site.

Approx 4 years ago a house was destroyed by fire. We have records from the fire brigade, esb and the council all stating that they responded to an emergency call on the night of the fire. The fire brigade report states that the roof of the dwelling was destroyed before they even arrived at the scene.
In the weeks following, the owner was instructed to demolish the remains of his dwelling because of serious concerns about the stability of the remaining structure.
The burnt remains of the house were then removed and the site remained without any dwelling ever since. There is only an entrance, garage, septic tank, electric supply and water connection at present.

It was decided recently to apply for permission to rebuild the house. Prior to submitting, we had conversations with the planning department and it was clearly stated that if an application for a new replacement house for the site was submitted within 5 years then
there would be no development levies imposed as a condition.

An application was lodged and the planning authority have taken the stance that the applicants need to submit a rural housing application form and are treating the application as if the previous house never existed. They now say the applicants, if they are to be given permission will need to pay the full amount of development levies for a new dwelling. But worse still, the applicants may not qualify for a 'new' rural dwelling, as they will not meet all the requirements for such an application.
There is no issue to date regarding the design and siting of the dwelling, as the proposed replacement dwelling shall occupy the exact footprint as its predecessor.

The reason the PA is giving for their stance is because this situation is not covered in the County Development Plan. In the plan it states that any house for replacement needs to be in a habitable condition. So because the previous dwelling has been destroyed they are insisting that there is nothing they can do to facilitate an application of this nature.

To surmise the Planning department response...........
'Oh your family home was destroyed by fire, gees that’s desperate. Tragic situation, sorry to hear that but we aint gonna give you permission to rebuild it. Hard luck but nothing we can do. Good luck tho.'

As you can imagine the applicants are devastated! We asked for the assistance of a local Councillor to arrange a meeting with the officials involved to discuss the application and he came back and told the applicants that they basically laughed at the fact an application was made under the title of a replacement dwelling. Now I look like a bit of an idiot, I’m furious! Its not as if we did not have extensive conversations with the PA officials prior to submitting regarding all aspects from levies, improved site entrance design, effluent treatment upgrade etc..

I've left the application settle for a couple of weeks (its on FI) so I could think about it and maybe I would then see things differently but as it happens I'm still pissed off, I'm not going to let this one go!!

Maybe it’s just me who thinks the Planning Authority treatment of the situation stinks, so I would like to know what other people think?
I'm going to insist on a meeting next week in the Council office but before I go charging in all guns I would appreciate your views.

Regards,

Davids
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Re: Whats your view?

Postby Tayto » Sat May 01, 2010 1:44 pm

Hi,
Your best bet is to consult with the planners yourself and basically ask for guidance. Otherwise appoint a planning consultant.

I've seen planning applications for the "demolition and replacement" of dwelling houses partially destroyed by fire. Your application may have put the planners in a spot because there was no reference to "demolition and replacement", only replacement.
Is there even a floor slab left? Or foundations? Something to demolish? If there is, you might be able to withdraw the current application and re-apply using new wording.
Appoint a planning consultant.
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Re: Whats your view?

Postby PVC King » Sat May 01, 2010 2:28 pm

Is the site in a conservation area or area of outstanding natural beauty or is it by the coast or a river?
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Re: Whats your view?

Postby Davids » Sat May 01, 2010 4:54 pm

Hi Tayto, there is nothing left of the house but foundations and photos at this point. The CDP states that the dwelling for replacement should be habitable.......but this may be the route I will have to take and hope someone sees some sense.
PVC King, the site is not in an area of outstanding natural beauty or by the coast/ river, I believe in all other aspects the site has no other problems. In fact the PA have just recently granted permission for a dwelling adjacent to the subject site. The original house recieved planning permission in the 80's. I knew the CDP had this wording before applying so I did consult with the Planning department and sent in photos and records etc showing the house as it previously stood and the most recent OS maps have it marked as well.
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Re: Whats your view?

Postby PVC King » Sat May 01, 2010 7:13 pm

That sounds very strange as the dwelling was as you say built in the 1980's with presumably a design spec of 30 plus years and is not a famine era cottage as are often used in an attempt to circumvent the intent of the regulations. I'd read Eamon Galligan's, Irish Planning Law and Procedure (Round Hall Sweet & Maxwell, 1997) as it certainly dealt with the expiration of time limits in respect of planning use classes; I can't remember if it dealt with this exact situation.

Certainly there seems to be some merit in constructing an argument on the point and getting a planning litigation specialist to give an outline opinion; which can only waste a little time at worst.
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Re: Whats your view?

Postby Tayto » Sat May 01, 2010 7:39 pm

Davids wrote:Hi Tayto, there is nothing left of the house but foundations and photos at this point. The CDP states that the dwelling for replacement should be habitable.......but this may be the route I will have to take and hope someone sees some sense. ....


I looked at a typical development plan (Cork) and this is what it says:

CORK County Development Plan 2009
Chapter 4: Rural, Coastal and Islands

4.14 A note on Ruinous Dwellings in the Countryside
4.14.1. It is not the intention of the settlement policy objectives of this plan generally to prevent the renovation of a ruinous or disused dwelling in the countryside for use as a dwelling, or in certain cases, the replacement of a ruinous or disused dwelling with a new dwelling at the same location, subject to an appropriate design, and scale of building. This would not apply where the existing structure is not substantially still in place and would of course be subject to normal planning considerations, as well as the requirements of other objectives in this plan (such as those relating to protected structures, scenic views and prospects, archaeology etc.). A ruinous dwelling substantially still in place is defined as a structure with the main walls substantially intact.


This is probably the policy upon which the Council is basing it's decision-making.

You really need to get a local planning consultant on board to look at the detail of the application, the existing permission (if any) or any relevant planning history to see if there's a way around the site being classified as a ruinous dwelling which is not substantially still in place, or even just to look at the possibility of rebuilding the house exactly as it was 4 yrs ago without having to go through the planning process. (Someone will probably state this is not possible). It all depends upon whether this rebuilding is considered new development or not. The further Information request gives you time to investigate.
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Re: Whats your view?

Postby onq » Sun May 02, 2010 12:30 pm

Davids wrote:Hi,

Have a situation at the moment that I would like to get other views/ opinions on. A client has applied to the local planning authority for permission to build a replacement dwelling on a rural site.

Approx 4 years ago a house was destroyed by fire. We have records from the fire brigade, esb and the council all stating that they responded to an emergency call on the night of the fire. The fire brigade report states that the roof of the dwelling was destroyed before they even arrived at the scene.
In the weeks following, the owner was instructed to demolish the remains of his dwelling because of serious concerns about the stability of the remaining structure.
The burnt remains of the house were then removed and the site remained without any dwelling ever since. There is only an entrance, garage, septic tank, electric supply and water connection at present.

It was decided recently to apply for permission to rebuild the house. Prior to submitting, we had conversations with the planning department and it was clearly stated that if an application for a new replacement house for the site was submitted within 5 years then
there would be no development levies imposed as a condition.

An application was lodged and the planning authority have taken the stance that the applicants need to submit a rural housing application form and are treating the application as if the previous house never existed. They now say the applicants, if they are to be given permission will need to pay the full amount of development levies for a new dwelling. But worse still, the applicants may not qualify for a 'new' rural dwelling, as they will not meet all the requirements for such an application.
There is no issue to date regarding the design and siting of the dwelling, as the proposed replacement dwelling shall occupy the exact footprint as its predecessor.

The reason the PA is giving for their stance is because this situation is not covered in the County Development Plan. In the plan it states that any house for replacement needs to be in a habitable condition. So because the previous dwelling has been destroyed they are insisting that there is nothing they can do to facilitate an application of this nature.

To surmise the Planning department response...........
'Oh your family home was destroyed by fire, gees that’s desperate. Tragic situation, sorry to hear that but we aint gonna give you permission to rebuild it. Hard luck but nothing we can do. Good luck tho.'

As you can imagine the applicants are devastated! We asked for the assistance of a local Councillor to arrange a meeting with the officials involved to discuss the application and he came back and told the applicants that they basically laughed at the fact an application was made under the title of a replacement dwelling. Now I look like a bit of an idiot, I’m furious! Its not as if we did not have extensive conversations with the PA officials prior to submitting regarding all aspects from levies, improved site entrance design, effluent treatment upgrade etc..

I've left the application settle for a couple of weeks (its on FI) so I could think about it and maybe I would then see things differently but as it happens I'm still pissed off, I'm not going to let this one go!!

Maybe it’s just me who thinks the Planning Authority treatment of the situation stinks, so I would like to know what other people think?
I'm going to insist on a meeting next week in the Council office but before I go charging in all guns I would appreciate your views.

Regards,

Davids


Hi Davids,

My experience in situations like this is that it means everything if the planning authority supports you.

We recently obtained permission for a replacement dwelling in Donegal for a client.
We digested a lot on the categories of replacement dwellings in that part of Ireland.

A huge factor in their supporting the decision was the family connection.
Also it materially differs from your case in that the house was still roofed.

I mention it because other conditions where permission was considered also arose, including the options of "walls still standing" to which you refer.

This may reflect back to a part of the Planning and Development Act 2000, since repealed I understand, where houses limited by a temporary 2-year permission would not be subject to enforcement action if the walls were complete to wall plate level.
This most basic concept of what constitutes a matter of building may have percolated through planning thinking over the years and informed the criterion you referred to.

The concept of a ruin is intended to support the idea of a dwelling on the site, of which you have documented proof.
This suggests a period of time having elapsed since occupation of the house, anything from zero to 10 years or more - I'm not sure if this is defined anywhere.
Comments could be put forward such that a ruinous structure would still be in existence if not for the Council's precipitous action, which your clients could have relied on to support their application for a replacement dwelling.

I am currently in negotiation with another Council over a matter of zoning.
All my meeting with officials are minuted back to them via e-mail and they are offered the opportunity to amend them.
The phone conversations with the planner have similarly been minuted and he has been pressed to confirm certain things via e-mail which he did after two weeks.
My experiences is that if they respond promptly and quickly to these matters, they are up front and aren't intending to shaft you.
Obviously I'm heading for trouble in this case, but that's nothing new with this Council.

My best advice to you is enter negotiations with the Council for the FI submission on this basis of minuted discussion and if they dislike it, tough.
I would use the opportunity to raise every single point you raised in the pre-planning conversations and minute them back to them as part of the FI exchanges, to have the on the formal record and see if they issue a rebuttal of your minutes - this will tell you the kind of people you're dealing with.
It won't matter a damn if they intend to shaft you anyway, but they'll think twice about misleading you again, although getting them to meet you or comment to you may become more difficult.
We are long past the nod and a wink school of pre-planning meetings, though, so they should have nothing to say.
If they complain, contact the County Manager's Office.
If he complains, contact the Minister's Office.

That Donegal job I mentioned?
Everything was minuted, including a request by the planner that we consider buying a field nearby it improve our percolation - he wasn't fronting for the owners, we had a percolation problem and he was pointing us towards a possible solution without prejudice to the outcome of negotiations.
He basically wanted to see if we were willing to explore every opportunity to resolve our clients' problems which we were.
Every letter sent to the owners' Estate Agent was copied to the planner, and their lack of response on questions we raised about possibly unauthorised septic tanks already in the field were documented in full.
This documentation of our unstinting attempts to resolve matters - including trying to contact owners in America - allowed the planner to support our reasonable alternative proposals to improve a difficult situation - we had tried everything else.

All correspondence was also copied to the client - everything, including responses from the planner and minuted comments from the estate agent.
Some clients hate my way of doing things, but I tell them there is a market out there if they want an alternative supplier of services.
This way they are part of an adversarial situation as opposed to hearing about its second hand.

In the Donegal case the clients were delighted because we succeeded in the end and it made it all the sweeter for them.
This was their third time trying to achieve a permission and they had been badly served by local service providers previously.

Because we knew of the difficulty before hand we were forearmed, unlike your office, but that's no reason for you not to adopt a similar policy now if you think it might prove useful.

Prepare your client for making an Appeal and for the volume of copy documentation.
Our clients in Donegal were receptive to our way of doing things from the get go, but all this correspondence about things they are so emotionally involved in this can upset laypeople if they are not prepared for it.
But it will means you will never be embarrassed in front of your client again by sudden surprises from the Local Authority - they will know what you know.

I suggest that you take advice from a planning consultant at this stage in the proceedings, to better prepare for the case you will take to Appeal, but more importantly to be able to include supporting planning and legal argument in your FI submission to hopefully avoid an Appeal.
Whatever about escaping the levies, I think you'd be well advised to follow this advice if you want to achieve your client's permission.

I also strongly suggest that you should bring your client to any pre-FI-submission meetings you might arrange, having suitably briefed and prepared them before hand.
Thsi will show them you are prepared to be up front with them on all matters and its even better than a minute of a meeting.
Plus if they believe your version of the pre-planning discussions, they can "have a go" at the planner for being two faced and/or having gone back on their word, , something you cannot do and retain your professional stance.
Might impress your client if you did though :).

There are other things your clients might do, which you should steer clear of - such as lobbying the local elected representatives to support their reasonable intentions to the County Manager.
Sometimes these can backfire at Appeal stage, because it involves seeking political influence.
However the elected representatives are the guardians of the public interest when it comes to making development plans.
Thus, in my opinion it may be appropriate to contact the elected representatives because the interpretation the planners are putting on your clients' circumstances do not reflect the intention behind the development plan in relation to replacement dwellings.

FWIW

ONQ.
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Re: Whats your view?

Postby goneill » Tue May 04, 2010 10:00 am

I don't claim to have any specialist knowledge of this situation, but it would strike me as odd if the reconstruction, within a reasonable time period, on a like for like basis, of a legitimately built building, i.e one with planning or pre '63, constituted "development". If it did, the implications for thousands, or even tens of thousands of buildings which no longer comply with the relevant provisions of subsequent development plans would be very far reaching. For example, all those people who do not meet rural housing criteria but who are insuring their houses against fire, are effectively wasting their money because they couldn't rebuild if the worst happened?
But if the reconstruction does not constitute "development" and your client applies for permission, anyway, "just-in-case" then it is possible that you cannot later claim it is not development. This is the situation with exempted development as outlined on another thread recently.

If I were you I would get heavyweight legal and/or planner advice ASAP, with a possible view to withdrawing your application, quick.
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Re: Whats your view?

Postby saintleger » Tue May 04, 2010 11:20 am

Like G O'Neill says, common sense would indicate that replacing a house destroyed in a fire would be treated as a special case. There is a provision in the PDA 2000 (which replicates an earlier provision from the 1963 Act) that indicates that a planning authority must pay compensation if they refuse planning permission for a replacement structure following a fire - but it only applies if the application is made within 2 years of the fire, and it doesn't apply to unauthorised structures, or fires set by the owner (not that I'm suggesting that either of these apply in your client's case!). It's section 193.

http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0193.html#partxii-chapii-sec193

However, it seems very hard on your client that they would be unable to replace the structure, because it's been 4 years since the fire and not 2. I'm assuming both that the house was a habitable, and inhabited, structure at the time of the fire, and that the clients haven't built a replacement dwelling elsewhere in the area in the 4 years since.

If, on the other hand, the house was not habitable at the time of the fire, and/or your clients have built another dwelling in the locality in the past 4 years, I could see where the Local Authority would feel this should be treated as a new dwelling. (I'm not saying I agree with them, but I could see where they'd be coming from).

It's a bit jobsworth of them to say 'oh, it's not covered in the development plan, there's nothing we can do about it' - isn't this precisely the kind of situation a material contravention could be usefully invoked for?

Legal advice would be useful in this instance, as there may be concepts of natural justice and equity enshrined in other legislation, or case law, that cover the deficiencies of the PDA2000 in this instance.
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