Perfect Planning – how to remedy Planning inconsistencies on your Property through Retention Planning

House Plans

A Retention Planning Application would be
made in circumstances where an unauthorised development has taken place and
permission is sought to retain it from the local authority.  In Kerry, the Local Authority is Kerry County
Council.  These circumstances would
occur, for example, where no Planning Permission has ever been granted, or
Planning Permission has been granted but the building was not erected in
compliance with the relevant Planning Permission, or there was an unauthorised
use. 

As regards an unauthorised use, this would
occur in circumstances for instance where the building was constructed for
residential use only and is now being used as a retail outlet or someone is
trading as a commercial business from the premises.  In these circumstances a Retention Planning
Permission for a change of use of the property would have to be obtained from
the Local Authority. 

If Retention Permission is not granted, then the Local Authority can bring what are known as enforcement proceedings against the property owners.  Implications of such Enforcement Notices are that if the Local Authority found that the property was an unauthorised development or was being used for an unauthorised use, then the Local Authority has certain powers of enforcement, including Demolition Order or the imposition of substantial fines.  The Local Authority’s powers are not limited to the foregoing.  Of note, the Local Authority have a certain time-period within which to bring the enforcement proceedings.

However, notwithstanding the fact that there is a time limit for the Local Authority to bring enforcement proceedings and the Local Authority are precluded from taking action after such time period, it does not cure or remedy the fact that an unauthorised development or unauthorised use exists in relation to the property.  This is particularly relevant where somebody wishes to sell on their property.  Essentially good marketable title of the property does not exist where there are planning irregularities or inconsistencies and therefore it is more difficult for someone to finance such a property.  In mortgage or re-mortgage circumstances, the main concern of the lending institution is to ensure that they have good marketable title for the security that backs their lending.  If there is an issue with the Planning Permission on the property, then this devalues their security, as it makes it more difficult to sell on the property if the borrower was to default on the mortgage.

The main issues with Planning Retention Applications
are the cost and timelines involved.  The
timelines for obtaining a Planning Retention application from a Local Authority
is said to be three months, but in practice this is realistically a six-month
timeline.  Furthermore, prior to
submitting a Retention Application you have to engage a qualified professional,
being an engineer or architect, to inspect the property, prepare the relevant
drawings and prepare the Retention application for the Planning Department of
the Local Authority.  As regards the
cost, again it depends on the extent of the modifications to be made and the
irregularities which exist in relation to the property.  In practice for small matters to be dealt
with by way of Retention Permission we are seeing costs in the region of €3,000
to €6,000. 

In most cases the matter of Retention
Planning is only coming up when people are selling property and the proposed
purchaser’s engineer carries out a full inspection of the site and discovers
there is an unauthorised development on the site.  In order to proceed with a sale, there has to
be negotiations into whether the proposed purchaser will carry out a Retention
Planning Application post-completion (only usually in circumstances where the
purchaser is a cash buyer, given the requirement of the bank to have good
marketable title prior to lending). Alternatively, where the property is sold
subject to Retention Planning being obtained by the vendor/ property owner,
this will delay out a sale by a minimum of three months, and more realistically
six months. 

Therefore, if we could offer words of advice, it would be that you should engage an engineer to ensure your property is Planning compliant.  While selling a property is usually the motivation behind ensuring your title is in order, it would be important that anyone who owns a property ensures their title is in order and up-to-date.  This again would be relevant if you are transferring property voluntarily to a family member or if you may need to re-mortgage a property or re-finance your property down the line.  If we can be of any assistance here at Healy Crowley Ahern, please feel free to get in contact.  Thank you for reading our article.