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Analysis

The following is based on the evidence of Council officials interviewed during this investigation, reports to my Office from the Council, examination of the Council's files by the Ombudsman and references to relevant legislation.

The evidence suggests that the shed was built in early 1998. The developer consulted with the complainants before he built the shed and the complainants had no problem with the shed being built as they understood it was to be used for the developer's own business needs. It was only when the developer rented the shed to the plant hire company in 2000 that the complainants became concerned due to the noise from the machinery, etc. Later, when the complainants feared that this might be the first step in the setting up of an industrial estate beside their house, they complained to the Council about the existence of the shed and wanted it removed.

The Council's inspection of 10 August 2000 identified the shed as a workshop, built as an agricultural shed, and concluded that the shed itself was an unauthorised development. In addition, an experienced planner reported in June 2002 that the shed was unauthorised. This was a straight-forward case of unauthorised development in that the shed was built without planning permission and the Council had identified it as such.

The Local Government (Planning and Development) Act 1976, as amended, was in operation at that time and provided the mechanism for dealing with the complaint.  The Council used its discretion to pursue the complaint by writing to the owner and occupier of the site on 16 August 2000 and subsequently issued a Warning Notice on 4 July 2001. New planning legislation, (Part VIII of the Planning and Development Act 2000) came into operation on 11 March 2002 and included specific procedural provisions in relation to complaints about unauthorised development. From 11 March 2003, it would have been mandatory to issue a Warning Letter when a complaint was made about this development - unless the Council decided to go for an injunction under section 160 of the Planning and Development Act 2000.

While the legislation gives local authorities discretion to take enforcement action, this discretion must be used reasonably.  It is clear that the Council was intent on dealing with the use of the shed, issued an Enforcement Notice to this effect and was successful in getting its use by the plant hire company ceased, but it ignored the matter of the unauthorised shed despite incontrovertible evidence that it was unauthorised.

The Enforcement Section of the Council differentiated between the use that was being made of the shed and the existence of the shed which had been erected without planning permission.  The fact that planning permission might have been secured to retain the shed if it was used for agricultural purposes (which it was not) was presented as the reason for not pursuing enforcement action in relation to the shed.  While a letter from the complainant to the Council did include a reference to an intention to use the shed for agricultural purposes, this never materialised and having carried out 17 inspections the evidence to the Council was to the contrary - after the plant hire company left it was used by its owner/developer to store building materials. Therefore, the suggestion by the Council that the shed was for agricultural use was irrelevant and misleading.

While pursuing only the use of the shed, the Council took almost one year to issue a Warning Notice.  It also put a "stay" on further action because a planning application was made, delaying the matter for another seven months.  When this process was completed, it then failed to take any further action on foot of the August 2000 report, despite ongoing complaints to it that the shed itself was also an important issue. 

Further reports by professional/technical staff were also not acted on.  For instance:

  • following the report by the Executive Planner dated 18 June 2002, a Warning Letter requesting the removal of the shed was issued on 20 June 2002 but there was no follow up;
  • the Executive Technician, in a report dated 8 July 2003, recommended holding off on issuing an Enforcement Notice until mid-August. There was no follow up in August;
  • regarding the planning application dated 22 August 2003 for change of use to a builders warehouse/store, another Executive Planner, in his report dated 13 October 2003, drew attention to the unauthorised nature of the development and sent his report to the Enforcement Section for enforcement action "... before they become established on site in terms of it being used as a builders depot/yard....". This indicated strongly that the building was already being used for an unauthorised purpose and that such use should be dealt with before it was too late. No action was taken by the Enforcement Section on foot of this Executive Planner's report;
  • in his report of 10 December 2003, the Executive Technician recommended initiation of enforcement procedures "... to cease all unauthorised development immediately ...".  The Enforcement Notice issued on foot of this recommendation referred only to the use of the shed and site.  There was no follow up on this Enforcement Notice;
  • the former Senior Executive Engineer, following a review of the file and inspection of the site on 16 August and 26 August 2004, respectively, recommended that the file be referred to the Council's solicitor with instructions "to initiate legal proceedings urgently".  The file was referred to the solicitor but there was no follow up after some routine queries were raised by the solicitor.

 

The Senior Staff Officer (SSO) said that he did not think the Council was looking for the shed to be demolished; that this was not done by the Council at that time; and that other Councils operated in the same way. He said that it was not set out in a formal Council policy but it was the practice at the time not to seek to demolish a building and no buildings were demolished by Meath County Council around this time. He said that while there was no directive from management on the matter nor was he aware of such a policy at a more senior level in the Council, the Council just did not seek the removal of buildings that were unauthorised. His focus, therefore, was on the use of the shed and the Council succeeded in having the use by the plant hire company stopped.  However, after the plant hire company left, the owners of the shed continued to use it for storage purposes, without planning permission.

When asked about the existence of an unwritten and unspoken policy not to seek the removal of a building, the Senior Executive Officer, the Director of Services and the County Manager denied any knowledge of such a policy and were adamant that no such policy existed. While it is clear that no such written policy existed, it seems that the SSO, based on his experience of custom and practice, had seen no evidence of efforts by the Council to remove buildings and, therefore, concluded that it was not done and would not be done in this case. The shed was intended for agricultural purposes and, in his view, if the developer applied for planning permission to retain it as an agricultural shed, permission would be granted. Therefore, the prospect of it being removed seemed to him to be remote.

One of the Council's main defences for failing to take proceedings, before the time limit ran out, is the lack of resources in the Enforcement Section during the relevant period and the increase in the number of enforcement complaints received. In the course of interviews with the SEO and the Director of Services, they highlighted the lack of resources in the Planning Section, generally, as a problem and the pressure of work on themselves meant that they were able to devote little or no time to the Enforcement Section.  It is undoubtedly the case that the number of complaints received more than doubled in the period 2000 (when the first complaint was made in this case) to the end of 2004 when the seven year limit was about to expire.  In the same period the staff numbers increased by only 50%.  It seems, therefore, that the Enforcement Section was understaffed during this period.  Therefore, the Council's defence of lack of resources is valid to a certain extent.  However, it is also the case that there was a huge effort, in terms of man-hours and actions generated, put in to this case but with little or no result at the end of the day.  The analysis of file transactions shows that the number of inspections carried out (planning and environment) was 17.  There were 82 items of correspondence (in and out) and another 68 actions generated internally (memos, e-mails, contacts with 3rd parties, etc.).  Therefore, given the effort put in, the resources argument does not stand up, as a defence of the Council's failure to take effective measures, in this particular case. Indeed, it seems that there may have been a waste of scarce Council resources, over a period of four and a half years, including solicitors' time and costs, without (a) achieving the objective sought by the complainants of removing the unauthorised shed, or (b) carrying out the obligations of the local authority to ensure that the planning code was complied with.

There were long delays in the processing of the case.  At crucial stages when it seemed that appropriate action was about to be initiated, following a flurry of activity including inspections, correspondence, etc., the file then went to ground.  For instance:

  • after the initial complaint was received on 9 August 2000, the developer and occupier were written to on 16 August.  After the developer replied on 21 August 2000, no further action was taken until 4 January 2001 - a delay of 20 weeks;
  • after a meeting with the developer and occupier on 5 January 2001, no further action was taken until a Warning Notice was issued on 4 July 2001 - a delay of 26 weeks;
  • following the report by the Executive Planner dated 18 June 2002, a Warning Letter requesting the removal of the shed was issued in 20 June 2002.  Nothing further happened until 3 June 2003 - a delay of nearly a year;
  • after the issue of an Enforcement Notice on 15 December 2003, nothing happened until the file was reviewed by the former Senior Executive Engineer on 16 August 2004 - a delay of 34 weeks;
  • after the complainants responded on 2 December 2004, to queries raised by the Council, there was no further action until 6 December 2005 after the complainant contacted the Council by phone and by letter to enquire about progress in the case - a delay of one year - although it is accepted that by the end of 2004 the Council was probably statute barred from taking enforcement action.

 

Other than the resources argument, which is accepted in general terms only, no explanations were forthcoming regarding the ongoing and recurring inaction in following up on Warning Notices/Letters and an Enforcement Notice. 

The evidence of the SSO and all line managers interviewed for this investigation suggests that there was little or no supervision or monitoring of the Enforcement Section by his line manager (SEO), or anyone else, to ensure that there was proper and effective use of the limited resources available, even when this case was brought to the attention of different management grades on at least 19 occasions over a period of three years.  This lack of involvement by his line manager or anyone else with responsibility at a more senior level may have led the SSO to make certain assumptions, such as, that the Council would not pursue the demolition of buildings in the prevailing climate of lack of resources in the Section.  Council officials interviewed during this investigation acknowledged that the SSO was left to his own devices and effectively ran the Enforcement Section on his own and that he and his staff were under severe pressure in their work.  His line manager told my Investigators that he did not have the time to take an interest in the day to day running of the Enforcement Section. The Director of Services, however, seemed surprised that this was the case.

When an alleged unauthorised development is brought to the attention of a developer by a local authority, the developer is entitled to apply for planning permission to retain the unauthorised development. Some developers use this tactic to buy time. Some of the delay in taking action, in this case, was caused by the Council "staying" the enforcement proceedings to allow the developer to apply for planning permission. While this may seem a reasonable course of action to take, on some occasions the action was stayed by a promise that an application for planning permission would be lodged with the Council.  For instance,

  • when the Council first wrote to the developer on 16 August 2000, they received a reply, dated 21 August 2000, saying that he (the developer) had obtained the relevant planning application form and he was in the process of completing it for submission as soon as possible.  When no application was received by 4 January 2001, the SSO phoned both the owner and occupier.  The occupier stated that he would be lodging a planning application within 14 days.  Nothing happened again until after the Council issued a Warning Notice on 4 July 2001.  A planning application was then lodged on 1 August 2001 and a decision to refuse permission was made by the Council on 26 September 2001.  This decision was appealed to An Bord Pleanála on 22 October 2001 but the appeal was withdrawn on 4 March 2002.  Accordingly, over 18 months was allowed to pass while an unauthorised development was in place, to the detriment of the complainants, while the developer took advantage of the Council's lax attitude to the enforcement of the planning legislation;
  • the Executive Technician, in his report of 8 July 2003, stated that the developer was in the process of preparing a planning application.  The planning application was received by the Council on 22 August 2003.  The applicant was refused planning permission on 15 October 2003.  Once this new planning process had been exhausted, the Council still took no action until a further inspection was carried out by the Executive Technician on 10 December 2003 following a complaint on behalf of the complainants.  Again, as referred to above, this did not lead to any progress in the case.

 

Section 162(3) of the Planning and Development Act 2000 provides that "No enforcement action under this Part ... shall be stayed or withdrawn by reason of an application for retention of permission under section 34(12) or the grant of that permission.". It seems to be the case generally that, once a developer applies for planning permission to retain an unauthorised development, enforcement action is stayed. It was represented to the Ombudsman by the Council in this case that, despite the mandatory nature of the provisions of section 162(3), enforcement cases are likely to be stayed by a judge in Court if it is brought to the Court's attention by the developer that a planning application has been lodged. However, the Council had no direct evidence to support this view and accepted that its view may be based on anecdotal accounts only. There may be good grounds for staying enforcement action while a planning application is in progress, particularly if the unauthorised development is having no adverse affect on anybody else. In this case, it seems that the question of taking steps to have the unauthorised development ceased, by means of an injunction under section 160 of the Planning and Development Act 2000, or of revisiting the matter afterwards to pursue the offence that had been committed under section 151 of the Act, regardless of whether planning permission was granted or not, were issues that were never considered. I found no evidence to suggest an intention by the Council to deal with the "staying" of enforcement in this case.

Section 157(4)(a) of the Planning and Development Act 2000 provides that no enforcement action can be taken in respect of unauthorised development after seven years from the date of commencement of the development. The shed in this case was erected in early 1998, therefore the seven year rule would apply in early 2005. Despite the delays and inaction in this case up to August 2004, the seven-year rule could have been prevented from taking effect in early 2005 if appropriate action had been taken even at that late stage. The former Senior Executive Engineer was aware of the urgency of the case and requested that the file be referred to the solicitor but the instructions to the solicitor, issued on 30 August 2004, fell short of his intentions and did not convey the urgency of the matter to the solicitor. If the solicitor had been instructed properly and had received a copy of the Senior Executive Engineer's report of 16 August 2004, he may not have had cause to raise queries which resulted in delay, and legal proceedings could have been initiated before the expiry of the seven year period.  It was not until the complainant made enquiries in November 2005 that the Council addressed the seven-year rule issue and decided that no further action could be taken at that stage.

Section 46 of the Planning and Development Act 2000 provides that if a planning authority decides that, in exceptional circumstances any structure should be demolished or removed, the planning authority may serve a notice on the owner and on the occupier of the structure or land concerned and on any other person who, in its opinion, will be affected by the notice. This section applies to any unauthorised development where seven years has elapsed from the commencement of the unauthorised development. My Office is not aware of any instance where this provision has been used by a local authority.

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