Status of Land Taken in Charge

Even if there are no lifts, common spaces in buildings, etc, there are still roads and services (street lighting, utility conduits, etc) all of which remain the responsibility of the management company. This isn't limited to costs which would fall on the local authority - Irish Water, for example, has no responsibility for water infrastructure in an estate not taken in charge, so if a water main or a sewage main is damaged or simply wears out and has to be replaced, the costs of that fall on the management company. The same goes for public lighting, electricity infrastructure and other utility infrastructure.

As the estate is new, all this infrastructure is new and for some years (assuming it has been properly constructed in the first place, which of course isn't invariably the case) the costs of operating/maintaining it are likely to remain low. But as time marches on these costs rise, and then they are overtaken by renewal costs - road have to be resurfaced or even upgraded at some point, water or sewage mains replaced, etc. It gets very expensive.

It's conceivable that the homeowners who control the management company may be willing to bear these large and rising costs in order to have some chance of frustrating the development of neighbouring land but, even if they are, its' a very uncertain trade-off. In the example given in the OP, routing th water supply for the new development through the common areas of the existing development may be the cheapest or preferred option, but that doesn't mean it will be the only one. So homeowners might bear all these costs and then find that the new development happens anyway.

The benefit on the OMC would be to manage any common property that still exists.

If the property is signed over to the council, it is essentially no longer is no common property. But the council would only control that which is signed over to them. If the council take the paths, roads, services in charge, that does not give them power over other common property that the OMC retain.

Eg the OMC might retain green area, gardens, parking area. In which the council would not have control to make decision over them. But the the OMC would have to pay to maintain them as the council wouldn't

If you can get your hands on the documents submitted as part of the planning application for the estate you should see the green areas being designated as communal open space and the grant of permission should state that the area is to maintained by the developer. Any proposals to develop the open space for housing would result in a contravention of the original planning permission and therefore would not be permitted

I'm not sure if I follow what you area asking. The council have no say in common property.

• Common areas. Owned collectively my all owners. Managed by OMC.
• Areas handed to the council. Becomes public land. Managed by the council.

If the OMC hands over property to the council, they are no longer common property. The OMC essentially cedes ownership. Eg a road given to the council is now a public road, it is no longer OMC common property. The delineation of what is handed to the council should be made clear, it is a legal transaction.

I could be wrong here, but my understanding is that there is a distinction between the local authority taking land in charge, and the local authority acquiring land.

If the council takes a road in charge, they don't own the strip of land in question; it still belongs who whoever owned it before it was taken in charge. The council have a bunch of rights and obligations in relation to the land, basically associated with maintaining it as a public road, and the owner's interests are correspondingly limited. Even leaving the issue of planning aside the owner can't, say, put up a house in the middle of the road that he owns, because his rights as owner are limited by the fact that it's a public road. But equally the council can't put up a house in the middle of the road because it's not their land, and their rights/obligations/control in relation to the road are all to do with maintaining it as a road.

It may be that current practice is that, when the council takes a new road in charge, they also take a transfer of the land in question, so that they do become the owner. I can see why that would appeal to developers. But it certainly wasn't the case in the past, and there are many roads in charge of local authorities that do not belong to the local authority and are not publicly-owned.

I'm also sticking to the facts, really not sure what you are getting at. The part in bold is simply incorrect.

Planning conditions apply to the property, not the applicant. Once the developer hands ownership to the OMC (and exits the OMC), the obligation to maintain lies with the OMC, ie the owner of the private property.

I think the owner of the land does retain some rights, and therefore some control, although you'd need a fairly improbable set of facts before this would be of any practical significance. But if you are the owner of land which has been dedicated as a public road, the public's rights over the land only extend to using it as a road, and the council's rights/responsibility are similarly limited. If somebody enters on the land for some other purpose that is inconsistent with your rights/interest in the land they are trespassing, and they are trespassing against you rather than against the council.

So, for example, if I'm using the road as a dumping-place for the waste from my fish processing plant and glue factory, if you fail to persuade the council to take any action to stop me I think you yourself could take action in trespass both to stop me and to recover damages. The householder on the other side of the road who, let's say, doesn't own any part of the road would have to frame their action in nuisance.

Or, let's suppose, a valuable mineral seam is discovered running under the road. Whatever mineral rights the landowner has (and, in Ireland, that may not b very much) are yours, not the council's.

A. The council can erect structures if erection of such structures would not reduce the public open area to a lower quantity than that stipulated in the current development plan for that authority. In each county development plan, it will stipulate the minimum percentage of public open space that must be in a housing development. Say for example estate A was built in 2000 and 10% was required as public open space at the time. If the required public open space is now 8%, they can only build over the difference (2%). Unless its a substantial area, I couldn't see the local authority want to build on it.

I have personally seen instances where a person living within the estate wishes to build an extension to the side of their house to accommodate a downstairs bathroom for medical purposes, they might be unable to build to the rear and there may be public open area to the side of the house. The council may transfer them a portion of this land to facilitate the erection of an extension..

B. Irish Water can lay pipes across the common areas provided that they have been taken-in-charge by the local authority. In most instances they would obtain a road opening licence, which would also cover the green areas etc. (if in-charge). There would be stipulations in the licence regarding working hours, reinstatement etc.

The benefit of a OMC in that situation would be to look after any other common property not taken in charge, cutting the grass etc. People can opt out of a residences association, but not an OMC.