Complicated question regarding Planning Permission and a Protected Structure

jayo73

I bought a newly built house back in 2008 in the countryside.

There was another site with an old cottage situated behind my house, with our boundry being about 3m from my back door (we dont have a back garden as such)

The owner of that property applied for planning permission in October 2007 for

"refurbishment of existing single storey dwelling and construction of an extension to rear, to construct domestic garage, to install proprietary sewage treatment system, to use existing entrance to public road, connect to existing public mains water and all ancillary site development works"

Permission was granted (with conditions) in January 2008.

Work on site commenced at the beginning of May 2010 which included the demolition of the old cottage and the building of a new house on top of the location of the old house, but with an extension out the back. This was however a completely new build rather than a refurbishment and extension.

I have just found out a few days ago that the old cottage was (and still is) listed on the current County Development plan as a protected structure.

It was originally proposed in late 2006 and formally adopted in early 2007 and was on the Meath County Development plan 2007 - 2013 and is currently listed in the current plan for 2013 to 2019.

Now here is the thing.

I have checked the planning application that my neighbour made and he failed to identify the cottage as a protected structure on his application. There is a specific question on the application that asks if it involves a protected structure and he ticked "No". Also for the notice in the news paper and the site notice the owner is required to state that the proposed application relates to a protected structure.

Nothing on the planning file mentions the fact that the cottage was a protected structure.

There was a 1 page archaeological report done as part of the application, but it only referred to it as a "derelict" dwelling - It never mentioned the fact that the property was protected.

As far as I have been able to research planning applications for Protected structures are supposed to contain additional pictures, drawings, impact reports etc are to be included with the application.

So the application did not draw attention to the fact that it was a protected structure.

In addition the Planning authorities failed to identify the property as protected either, and so the application went through the normal planning process, and was eventually granted.

So my neighbour went ahead and knocked the cottage and built his new house.

Then earlier this year our neighbour went about working on his gardens and he has cut down a lot of trees and removed the privacy between our houses. He the went ahead to dig our a large part of his garden behind our house and put in a huge pond (almost like a swimming pool). This has upset us a lot.

So we started reading and it was only earlier this week that we discovered that the origional cottage was protected, as indeed would be the land surrounding the cottage.

So, in my view his current works in the garden would be an unauthorised development because he never obtained planning permission for the works.

But here is the question that I cant find an answer to.

Is his house an Authorised or an Unauthorised development?

He was granted permission to refurbish and extend the cottage - but not to demolish and rebuild.

In my view his planning application was not valid because he failed to identify the protected structure as required by the planning acts. Does that mean that the planning permission that was granted on foot of the application is also invalid?

Who's duty is it to identify the protected structure in the planning process - the applicant or the council?

I approached the owner today and he knows that the cottage was protected, although he claims that he did not know at the time when the planning permission was made. He was not the legal owner of the property at the time of the application (the deeds only transferred to him in 2009) - the original owner died in 1996 so I guess the property must have been stuck in probate. So I am not sure who was informed by the council in 2006 when it was proposed as a protected structure.

Anyway, any thoughts would be welcome

braddun

talk to planning dept

Aard

I guess the question is who the onus is on to recognise that an application for planning permission refers to a protected structure. I cannot say with absolute certainty, but I would have thought the Planning Authority has a duty to investigate that. After all, they write the Development Plan which lists PS's. Sounds like a case that could easily end up being judicially reviewed.

jayo73

Aard wrote: »

I guess the question is who the onus is on to recognise that an application for planning permission refers to a protected structure. I cannot say with absolute certainty, but I would have thought the Planning Authority has a duty to investigate that. After all, they write the Development Plan which lists PS's. Sounds like a case that could easily end up being judicially reviewed.

I see where you are coming from Aard, but I have read the legislation and it is clear that the applicant must identify if the development relates to a protected structure on the application, the newspaper advert and on the site notice.

I cant find any reference to the planning authority having to identify that the structure is protected. They have to go through a process for adding or deleting a property from the register, it has to be in the development plan etc.

jayo73

Aard wrote: »

I guess the question is who the onus is on to recognise that an application for planning permission refers to a protected structure. I cannot say with absolute certainty, but I would have thought the Planning Authority has a duty to investigate that. After all, they write the Development Plan which lists PS's. Sounds like a case that could easily end up being judicially reviewed.

Also, one other thought.

Whatever about the house, I would argue that the property is still listed as a protected structure.

From what I have been reading the protection extends to the land around the structure and other structures on the property.

On the Meath website the document explaining whats involved with protected structures says that;

3. What parts of a protected structure must be preserved ?

The obligation to preserve a protected structure applies to all parts of the structure,
including its interior, all land around it, and any other structures on that land, and
their interiors. The obligation also applies to any exterior or fixtures and fittings of a
protected structure or of any structure immediately within its curtilage. If a declaration
is sought ( see section 7 below ) the planning authority can clarify which if any, parts
of the structure or its surrounding curtilage are not of special architectural, historical,
archaeological, artistic, cultural, scientific, social or technical interest, and therefore
do not require special protection.

So I am assuming that the works involving excavations and the pond would require seperate planning permission (was not on his original planning)

BTW - I am not trying to be argumentative, I am just debating it - I really appreciate all your views/thoughts on the matter

Aard

Yes the adjoining lands etc are generally referred to as being within the "curtilage" of the PS and have similar protected status.

Wrt the applicant having to identify a PS -- it wouldn't be incredibly unusual for somebody not to know that a building is protected. For example grandchildren/nephew s etc who inherit a property. As such, I don't think that the planning authority is entirely absolved from the matter.

Btw, and this is not legal advice just to be clear, it is possible for anybody to request a planning judicial review -- even if they haven't been involved in the planning process.

DOCARCH

@Jayo. As the title of your thread suggests, that is a very complicated planning question! Mind boggling in many respects. And, quite possibly into uncharted territory.

I find it hard to believe that the owner did not know that his house was a protected structure when applying for planning permission? As for the LA not picking up on this, that's another matter.

What is the nub of your problem? Is it simply that the trees were cut down removing your privacy?

As you have correctly stated above, protection does extend to the land around the (protected) structure and other structures on the property, so, the digging of the large pond possibly would require planning permission, whereas, the cutting down of trees probably would not require planning permission (unless the trees themselves were specifically protected).

You could simply have a chat with your neighbour first (armed with the information you have about the planning 'status'!) about reinstating some sort of mutually agreeable form of privacy between the properties (like planting of new trees, a hedge, a fence...or the likes).

If you get nowhere, you could make a complaint to the planning enforcement section of the LA.

sydthebeat

My thoughts (opinion)

1. Id give the neighbor the benefit of the doubth that they didn't know in late 2007 that the house was listed as a protected structure in the cdp that year. As far as i am aware there is no communication between the council and property owner when a property is listed.
2. It's the council's responsibility to check whether it's listed or not in an application as its part of the validation process.
3. The house as stands is unauthorised. Its possible that the statute of limitations doesn't end until 14 years (and approx 123 days?) as the unauthorised limit wouldn't start until the first permission that was taken up is over.
4. It wouldn't have been unusual for a decision to be made during construction to knock down the whole cottage and rebuild in modern standards. This could have been the plan all along, or it could have been an economic choice made during the demolition process. I've seen decisions like that being made when all that's left standing is usually three outer walls.
5. Its quite possible that when the neighbor is doing doesn't require permission at all. We'd need to know the reason for the hole.

Pinch Flat

My view would be that the neighbour has pulled a fast one to get planning for his new house. He has failed to disclose that the original cottage is protected and it is his responsibility to declare this. Getting planning for a site with a protected structure is much more involved and trickier and the council could have asked him to do something with the old cottage to preserve it. A disgraceful and cyclical approach by the neighbour. And the fact a 'professional' was implicated in this with the report even more worrying.

The fact that the council granted planning though would indicate they were unaware of the fact and didn't do their own due diligence.

So looks like both parties messed up - one deliberately hood winking the council, the other by not checking the application. I would have thought there is some thing to protect a council in this scenario though - as far as they're concerned the proper is still formally listed in their development plan and no formal application to delist it has been processed.

http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/FileDownLoad,31564,en.pdf

On the trees, I'd they're older than 10 years I would think your neighbour is in breach. You don't need planning permission but a fellow licence should be applied for - you could also check if the protected status of the propery extended to the trees, in which case he would be in breach. I would inform the council on this as you have your own right to quiet enjoyment - is it a common boundary? Do you have any pictures of this before?

http://www.teagasc.ie/forestry/advice/felling_licences.asp

Aard

A few notes... This is a very interesting case btw, objectively speaking of course.


When a planning authority lists a building on the RPS they MUST let the owner know. There is then a formal process whereby the owner can enter into dialogue with the PA. There is then a duty on both parties wrt the PS. However, it is possible that a future owner of the property (subsequent to listing) might not know about the fact.

It would seem that the huge pond might be unauthorised development. Which the PA could carry out enforcement on.

As for whether the house is authorised or not. Was it built in accordance with the plans and conditions of the PP? If it was, I wonder if the applicant has a case to say that it is authorised. It's not uncommon for PA's to contradict the DP when granting permission, especially where standards can be "relaxed".

I can't see this being regularised any way other than by JR. An Bord Pleanála has no role to play since it's not an appeal. The PA can't retrospectively refuse permission. As long as your neighbour built to plan then he's sitting pretty to, since as far as he's concerned he has PP for all development (other than the pond, potentially, which is a different matter).

jayo73

Thanks for all the feedback so far.

A lot of points have been raised and I will try to clarify some points as best I can.

I dont want to identify the property so I am not going to identify the listing in the RPS, but the listing refers to a "Single storey cottage" and an"orchard"

There are in fact 2 orchards on the site, both of which are very old. The cottage is older than 200 years (perhaps close to 300 at this stage) and I know that the orchards are definitely more than 100 years old, but likely to be as old as the cottage.

Now some of the trees that have been cut down were in one of the orchards, some of them were not.

There is also an old lime kiln structure on site, and there would have been some quarrying carried out on site when the lime kiln was operational (I dont know as yet when lime kiln stopped being used). The current owner may argue that his excavations on site are merely in keeping with this particular aspect of the history of the site. To give you some perspective on the extent of the excavation it would cover an area of about 15m x 20m and would be approx 3m deep at it's deepest point.

The lime kiln would be an important structure in it's own right, and indeed I expect it is a protected structure too, but it was not the reason whey the cottage was protected in the first place.

It is true to say that my interest was primarily to do with the erosion of privacy caused by the felling of the trees, and not liking the "swimming pool" that has been constructed in it's place. I had no idea that the original cottage had protected status until a few days ago.

It is possible that the current owner was not aware of its protected status at the time planning was submitted.

The ownership of the property is somewhat complicated as well. The original owner died in 1996, a long time before the structure became protected. The property was inherited by a nephew living in Canada. I have no idea how long it took to find him etc, but from looking at the land registry for that folio the property was still in the name of the original owner until April 2009, then it was transferred to the nephew, and then in September 2009 it was transferred to the current owner.

So it's all rather messy.

The council are obliged to notify the owner and occupants when a property is proposed for protection, and again when it is formally accepted, so I imagine that the estate of the owner was notified in this case, and this would have been done before any planning application was made.

jayo73

While the owner may not have known that the cottage was protected, he was very away of the history associated with the site as this was part of the allure for him to purchase it in the first place.

Also, his Architect is a Grade III conservation architect and would have been aware of the history of the site. I would have assumed that he would have checked the register when compiling the application.

As for the archaeologist, I cant for the life of me see how he didn't research this as part of his one page report!

I accept that the owner may be sitting pretty with the house because he was issued planning permission, and from what I can see his new house is in line with his plans. However his planning was for refurbishment of the existing dwelling and the building of an extension. There is no mention of demolition in his planning.

The cottage was completely demolished, and because it had no foundations the builder dug new foundations as necessary for the new structure.

Is this refurbishment as per his planning or is it a demolition without planning? Or is it a mute point anyway?

sydthebeat

No it's not a moot point.

It's unauthorised development if the permission was not for demotion and replacement of dwelling.

moleyv

The planning permission is void, and in any case the works were not carried out in accordance with the permission.

The LA should routinely check these things and would be mapped on their GIS system.

The LA may be reluctant to enforce as they missed such an obvious designation. That said it is not sufficient to say they were not told it was an RPS on the application.

The structure is without a doubt unauthorised because of my opening sentence.

Regarding the works within the curtilage of the house. This is generally case dependent and what is proposed and what exactly is protected.

The proposer of the works can request a declaration if the works would be exempted development or would require permission.

as for what can be done about a demolished structure.... hard to say. If you report unauthorised structures it must be investigated. you can request to remain anonymous.

If LA want to enforce, the occupant could just as easily request a judicial review.

as for the architect... needs reporting to RIAI. Not a hope he didn't check something like that out.

kieran.

jayo73 wrote: »

To give you some perspective on the extent of the excavation it would cover an area of about 15m x 20m and would be approx 3m deep at it's deepest point.

Is this cottage associated with a larger land holding? The 15 x 20 x 3m hole sounds a lot like a 4 bay twin sided slatted cattle shed which a lot of farmers believe is exempt development however the point they forget is that the structure must be consented by any residental/commericial property owner with 100m of the proposed structure. Not withstanding all other complications associated with exempt development in tandem with a protected structure.

jayo73

The size of his complete site is about 5 Acres.

I was trying to post some photos and satellite images but I cant as I am still a new user on this forum.

They would give a better idea of the site overall.

I don't suppose any of the mods could help out?

BryanF

you have given more than enough specifics of this case

DOCARCH

@jayo. As I asked earlier in the thread, what outcome do you want/what are you looking for?

Your neighbours problem is your neighbours problem.

jayo73

DOCARCH wrote: »

@jayo. As I asked earlier in the thread, what outcome do you want/what are you looking for?

Your neighbours problem is your neighbours problem.

Sorry I didnt answer your question Docarch before.

Yes, my problem is the privacy situation.

The ground works are ongoing now for almost 9 months - the same time that it took him to build his house and we are just fed up with it.

We have had our house re-valued and the valuer has determined that the impact of his works on the value of our property is a reduction of about 20%. In a nutshell the works are likely to make our house harder to sell in the future because of the lack of privacy.

And on a day to day basis we feel totally exposed.

Initially when the works started my neighbour said that he would only be cutting down any trees that were in a dangerous state, and that they would be replanting in time. But as the work progressed his plans changed and he now has no intention of replanting trees.

Myself and my wife have spoken to him on numerous occasions, expressed our concerns and our wishes but he has simply ignored them.

On the issue of the protected status, I only became aware of this situation in the last week.

When I bought the house I always knew that the old cottage was going to be knocked and a new house built - I had no problem with that at all. But I never looked into the planning etc.

Now to my mind the protected status extends to the surrounding grounds and I accept that this is only my assessment and may not be correct. That said at the very least my neighbor is required to get a section 57 listing from the council to say what work can be carried out without planning.

It's just when I started looking into this that I could not believe that the owner, the architect, the archaeologist and council missed the protected status.

This protected status looks like the only avenue available to me to try and get the privacy issue rectified.

I spoke with my neighbor on Saturday again and I laid it all down on the line. He told me that he is aware that the old cottage is/was listed.

He said that he didnt know when he applied for planning, and that his Architect made a valid application.

He is happy that he built according to his permission (even though he did not have permission in his planning to demolish), and I feel that he just wants to get past the 7 years to avoid enforcement.

Now I accept that his problems are his and not mine and that I should keep my nose out of it, but what would you do when your neighbor wont listen to your concerns or try to come to some mutual agreement.

I dont want to go to the council - and I have as yet not decided if I will - but I am considering it.

I have also considered writing to his Architect to point out the situation to him - he is after all a conservation architect with the hope that the neighbour may listen to him where he has not listened to me.

sydthebeat

Without being flippant but you can easily build a fence / plant screen trees if privacy is your only issue?

Aard

If you don't want to inform the planning authority, then there's not much else you can do but try to get past it.

jayo73

sydthebeat wrote: »

Without being flippant but you can easily build a fence / plant screen trees if privacy is your only issue?

I appreciate that, but it's not just so easy.

Our site is very strange.

We dont have a back garden, we have about 2m from our back door to the boundry wall, his pond is actually closer to our house than to his own.

Also, the wall separating our properties are built on top of outcrops of rock - there is nowhere for us to plant trees or even erect a fence on our side of the boundary.

Kristopherus

Go to the council with a written application to view the planning file, before they close for the Christmas holidays tomorrow evening.

jayo73

Kristopherus wrote: »

Go to the council with a written application to view the planning file, before they close for the Christmas holidays tomorrow evening.

Hi Kristopherus,

This is going to sound silly perhaps, but I have to ask.

What exactly is the planning file, and what kind of extra information would it normally have?

And, is this something that they can disclose to a 3rd party (me in this case) without some valid reason?

jayo73

Kristopherus wrote: »

Go to the council with a written application to view the planning file, before they close for the Christmas holidays tomorrow evening.

Hi Kristopherus,

This is going to sound silly perhaps, but I have to ask.

What exactly is the planning file, and what kind of extra information would it normally have?

I assume it is not the application, but the whole file kept by the council including the application.

And, is this something that they can disclose to a 3rd party (me in this case) without some valid reason?

Kristopherus

jayo73 wrote: »

Hi Kristopherus,

This is going to sound silly perhaps, but I have to ask.

What exactly is the planning file, and what kind of extra information would it normally have?

I assume it is not the application, but the whole file kept by the council including the application.

And, is this something that they can disclose to a 3rd party (me in this case) without some valid reason?

It holds all the documentation provided by the Applicant, Architect, Council Engineer, etc., etc from the initial application to the final decision.