Harassment from Planning Enforcement officer

Harassment from Planning Enforcement officer

Postby emailtojohn » Fri Oct 28, 2005 10:10 pm

I am currently in the process of building an extension (38sqm) to our terraced home. As a matter of courtesy, I consulted with all neighbours who were supportive and had no concerns or objections. We bought the house a year ago and prior to this the house was derelict for 18 years.

At this stage we have finished renovating the main house and are working on the extension. All the block work, joists and studding of the ground floor are completed. Last week, an enforcement officer arrived at house saying that our next door neighbour had complained about our extension. (This neighbour had wanted to buy the property previously and was jealous about the improvements we had made to the house) I explained the extension was within 40sqm and should be exempt from development. The enforcement officer had little interest in this and instructed me to contact the planning office, which I did. The Planner asked me to submit plans and recommended that I stop the work until the situation was resolved.

Within two working days, I had a professional set of plans submitted by an architect. After 5 days, the Planner and Enforcement officer visited our house to examine the extension. The planner was reasonable and professional but the Enforcement Officer kept trying to find fault. He even complained about us using cavity blocks. (I know that this is not the ideal method of construction but we are running out of money at this stage) which is certainly not an enforcement issue. He only dropped the issue when I said I knew that thee were compliant with all planning laws. A Building control officer was also due to visit to examine the extension. This seems a lot of resources to check a simple extension.

Their conclusion was that our extension was not exempt from planning as more that 12sqm was on the first floor. The Enforcement officer also said that the boundary wall of my property may not be mine. This is almost impossible as the boundary wall is the gable wall of my house and the extension will be over a section of the wall that is adjacent to a public laneway. The want me to produce a map or title deep to prove I have a right to build on the wall. My solicitor said such a map or a deed with this level of detail may not exist as the house is over 200 years old.

I feel that this enforcement officer is going to make life very difficult for us and may be a friend of the neighbour who objected. This neighbour in question is far from planning compliant: He owns two houses that meet the perimeter of our boundary and has never applied for any planning permission despite the fact that he has built a first floor extension on a boundary wall, inserted a first floor window overlooking our garden, Built a wall against the gable wall of our house, put a roof on an alley way which connects his house to ours, installed waste sewerage pipes at ground level on a shared laneway which he has no access right to which connect into our private sewer at ground level. He also burns the rubbish, plastic and foam from his shop, basically operating a part time incenerator.

I have told the enforcement officer this but he says this is a legal matter and not a matter for the council. At this stage we cannot sleep with the stress of it all and are desperate for professional advice and direction.
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Re: Harassment from Planning Enforcement officer

Postby ctesiphon » Fri Oct 28, 2005 11:49 pm

Without wishing to sound facetious, your unfortunate situation sounds exactly like a question I answered in my Planning Law exam for my Masters. Now here it is in real life! The short answer is, there is often no 'right answer' to a situation like this. However, I'll try my best.

My first suggestion was to have been to get a solicitor well acquainted with planning law. As you have a solicitor, I can only emphasise the need for planning law competence. It might also be worth your while to talk to a planning consultant. The IPI website (http://www.irishplanninginstitute.ie), though not exhaustive, should indicate whether there's one in your area. A competent architect might suffice for this either.

Whatever works your neighbour has carried out, if they were completed more than 5 or 7 (see below) years ago they are outside the statute of limitations for enforcement proceedings, even where they infringe on a public right of way.
From Dublin City Council website:
"Under the Planning and Development Act 2000, if the development commenced on or after the 11th March 2002, the time limit is 7 years. Action must be taken within five years if the unauthorised development/use commenced prior to that date."

The burning of rubbish is a different matter, though, and could be legitimately investigated under planning law as it might constitute a change of use, if there is no permission for such an activity (as seems likely). However, I would caution against fighting fire with fire (pardon the pun!) at this stage, as it could have serious consequences further down the line. It would be best first to sort out your situation on its own, without recourse to the 'he said - she said' school of argument, if at all possible. If the burning is still an issue when this is resolved, perhaps pursue it at that stage.

Their conclusion re the 12 sq.m. at first floor seems correct for a terraced house (see http://www.fingalcoco.ie/YourLocalCouncil/Services/Planning/DevelopmentExemptFromPlanningPermission/InformationRegardingExemptedDevelopment/
for general guidance).

The boundary wall issue is less clear cut, and I can't quite envisage it from your description. Is it that there is a laneway running alongside your house, with one side of the laneway being formed by your gable end and your garden wall (being an extension of the line of the gable end)? In other words, will your first floor extension form an edge to the laneway? If so, perhaps they have a point, though it's one I can't really clarify for you I'm afraid.
The type of map you are looking for might exist in the Valuations Office in Dublin (I think now located in the Irish Life Centre [NOT the ILAC Centre] on Abbey Street near the VHI Head Office). It would be worth a visit, but keep your expectations lowish. I'm less sure about the deed, but would guess that the Registry of Deeds would be a place to start.
Even if it turns out that you don't have the right to build on the wall, it is not unheard of by any means for an agreement, whether by means of sale or otherwise, to be reached between the owner (the local authority) and a developer (you). A look around many Dublin suburbs with garage extensions beside laneways would tell you as much, at any rate.

I hope this is of some use to you. I'd be more specific if I could, but some of your details are a litle confusing. For example:
"He owns two houses that meet the perimeter of our boundary" is somewhat unclear;
"Built a wall against the gable wall of our house"- Not sure how, if one side is a laneway and the other is a party wall as part of a terrace;
"put a roof on an alley way which connects his house to ours"- is this the same laneway as you mentioned re the boundary wall issue?
Sorry to nit-pick, but without drawings or written compass points it is a little difficult to build a comprehensive mental picture of the site.

In conclusion, I sometimes suspect a fear of litigation has led some local authority officers to adopt a hardline approach to matters such as planning enforcement in recent times, and it is possible that you have simply been the 'victim' of a very by-the-book approach. Equally, it is possible that you are the victim of a combination of a vindictive neighbour and a somewhat underhand enforcement officer. In either case, I would again stress the need for a planning savvy solicitor or a good planning consultant. A message board such as this can never really replace good advice based on first hand knowledge of the particulars of a case. Keep an open mind about solutions, and remember to appear keen to resolve the matter in as amicable a way as possible. The behaviour of the enforcement officer, even if technically correct, certainly seems a bit unprofessional, but to an extent it has little bearing on the details of the case, which in a nutshell sound like:
a) you will need planning permission (the 12 sq.m. clause); and
b) you will need to resolve the boundary wall problem with the local authority.

Best of luck with it- I hope it all works out.
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Re: Harassment from Planning Enforcement officer

Postby DOC » Sat Oct 29, 2005 10:15 am

Just to add to the comprehensive reply above. The Enforcement Officer only has a remit with regard to planning issues.

The boundary wall issues are a civil matter - the Local Authority should not make any comment with regard this. The form of construction is a Building Control/Regulation issue - nothing to do with Enforcement - you can use cavity blocks (as with regular cavity wall construction) as long as suitable insulation complying with current Building Regulations is provided internally.

Where you prabably have a 'clear' problem with the Enforcement Officer is that you have gone beyond the 12.0 sq.m. limit for the first floor extension. The simple solution to this is either to apply for planning retention or alter your plans/construction to comply with the allowed floor area.

I have had experience previously where, within the same Local Authority, a Planner and Enforcement Officer have differed over the interpretation of the Exempted Development Regulations. Planning and planning exemption can in some cases be very grey and not black and white! I always advise clients now to seek a declaration from the Local Authority prior to carrying out exempted development works so at least they have a piece of paper to wave around to nosy or interferring neighbours!
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Re: Harassment from Planning Enforcement officer

Postby ctesiphon » Sat Oct 29, 2005 12:13 pm

Great minds, DOC! My post from the 'LED board - planning permission?' thread:

ctesiphon wrote:You mightn't even need a Sec 5 - perhaps just a call to the LA would suffice - but if neighbours etc start to complain down the line a Sec 5 can be a handy thing to have in the back pocket.
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Re: Harassment from Planning Enforcement officer

Postby emailtojohn » Sat Oct 29, 2005 1:52 pm

Thanks for your replies to date. Your comments are very helpful and informative.
I feel that this Enforcement Officer is not going to go away and his motivation is more than a professional sense of duty. I am now wondering should I lodge a formal complaint with the local authority that he is prejudice and not treating us fairly. I think we have nothing to loose.

I also think that he did not follow due process in starting the enforcement proceeding as no letter of complaint was received. It was more a case of his friend (my neighbour) made a phone call and now I have had a Senior Planner, the Enforcement Officer and the Building Control Officer visit my site. Also to hassle us about issues that have nothing to do with Enforcement would seem to be inappropriate to say the least.

I had already stopped the building work when the issue came to light. Is there any way I could finish the building work if I limit the first floor extension to 12sqm or finish the job as planned and apply for retention afterwards.
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Re: Harassment from Planning Enforcement officer

Postby emailtojohn » Sun Oct 30, 2005 7:44 pm

We have come to the conclusion that the only solution might be to demolish part of the first floor extension to reduce the new first floor area to 12sqm to comply with the exempted development rules.

The alternative is to close up the site, apply for retention and planning permission to complete the development. This could be dragged out over six months and the Enforcement Officer may interfere to ensure a refusal anyway. We have a 2 year old and the thought of a permanent building site in the back garden is a nightmare.

One last thing should we definitely go down this road: In the original extension we had a flat roof but would rather a hip roof (less likely to leak in the long term and aesthetically more pleasing). The senior planner did say he did not think a flat roof was a good idea. Could the Enforcement Officer use this to cause us more hassle?
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