4 Mar 2009

I found out about this unfortunate situation a while back but somehow never really managed to get to the bottom of it. Nevertheless, I think it’s worth presenting the generalities of the story because even if it didn’t happen exactly as I’m describing it, theoretically, it could have.  

Some years ago, a Planning Authority granted an applicant permission to build a family home in a non urban location. The applicants had to demonstrate that they qualified under the ‘we really are locals’ rules: however, the planners put one of those conditions on the approval that the resulting property could not be sold to a third party for a set number of years.

The house was built and the applicants moved in.

Since then, they’ve have had a child who, very sadly, suffers from a serious health condition and is obliged to attend a special hospital several times a week: the hospital is located quite a distance away from the family home. For all sorts of very understandable reasons, it would make a great deal of sense for the family to move from their current home and find a place closer to the hospital. The problem, of course, is that the condition on the planning permission is preventing them from selling their house. They live under extreme stress.

A situation like the one described (what happens when all those home owners with similar planning restrictions on their properties can no longer meet their mortgage payments as the economy hurtles into the abyss?) was easy to foresee - except, it would appear, by our Planning Authorities. A mess to add to all the others we’ll live to regret.

Thursday, 05 March 2009 12:40:50 (GMT Standard Time, UTC+00:00)
Hi Garry

I received a similar condition on my home in County Wicklow some years ago (which, by the way, is a 10 year restriction!). There is however, a clause stating that a bank can sell the property if payment cannot be met by the home owner.

Call me naive, but I would assume that the senior officer in the council would be obliged to take into account any exceptional circumstances (which the above is).

I know also that planning authorities must consider any special requirements that an applicant might have, such as special needs. Planning authorities are obliged to consider these issues as part of an application (On my recent planning application, I outlined some non-standard design requirements for our house, as we have a special needs child, which were noted and accepted by the local authority). So I would presume that the same approach would apply to any existing planning condition that impedes an unseen exceptional circumstance.

I have also heard of several cases where people managed to wrangle out of this condition with the most spurious of reasons. One that comes to mind was: on completion of the house, the wife declared that she was afraid of ghosts/fairies and felt that where the house was built, was too close to a fairy fort!

Please note, I am not some planning authority sympathiser, but I would hope that any planning authority faced with the above circumstance would revoke the offending condition.

Now that I have read my comment back, perhaps I am naive....

Eamonn
Eamonn
Tuesday, 10 March 2009 18:06:42 (GMT Standard Time, UTC+00:00)
I had a case where a client was previously granted permission for a rural dwelling on family lands and a similar minimum occupancy clause was attached to the planning permission. The family lands were owned by the applicants mother who subsequently had a disagreement with her son (the applicant), and refused to transfer the land to her son.

The applicant then proceeded to apply on lands within the 10km locality for permission to build a dwelling on lands that he contracted to purchase subject to permission.

As this was going on the applicant’s mother gave the original site to her daughter (the applicant’s sister) who proceeded to build the originally granted dwelling. Because the minimum occupancy condition referred to the applicant or "an immediate member of his family" this was considered ok by the planning authority.

So along comes a request for further information on the applicant’s second planning application which among other items suggested that the applicant didn't qualify for the permission as he was previously granted permission. A subsequent conversation with the planner involved resulted in the applicant being told he was extremely unlikely to receive any rural permission due to the original application. Other elements of the FI were technical in nature and the applicant decided not to pursue the case.

Mossie
mossie
Tuesday, 10 March 2009 18:21:32 (GMT Standard Time, UTC+00:00)
Lord god.
Garry
Wednesday, 01 April 2009 18:43:47 (GMT Standard Time, UTC+00:00)
I would say that that this issue should be looked at as follows:

The right to own, buy and sell property is a common law right fundamental to the land and those who own it.
The restriction on the selling of the land is one established by local authorities by condition (I am not aware that this right is clearly established in the planning legislation)
As far as In know (I'm no lawyer) common law rights superscede all other matters including those introduced in legislation. As such it is arguable that such conditions are unconstitutional, although this has not been tested in court.

There is sense in the local authorities attempts to control rural development, but this may not be the best way to do it -

Andrew

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