Ask a Solicitor: Unauthorised development and the risks of relying on the seven-year rule

A planning authority is generally restricted from initiating enforcement proceedings after seven years have passed.

Dear Alex 

A neighbour recently told me that if a structure has been in place for more than seven years without the council taking enforcement proceedings, then it effectively becomes “safe” from a planning point of view. I have a shed and an extension on my property that may not have had the correct planning permission when originally constructed. I was considering carrying out further works in the future, and I am also conscious there has been discussion locally about land potentially being affected by a compulsory purchase order for a road project. What are the risks associated with unauthorised development, and is it true that after seven years, there is no issue?

Dear Reader 

This is a very important query and one that frequently arises in practice. There is a common misconception that once a structure or development has existed for more than seven years without enforcement action being taken by the planning authority, the development automatically becomes fully lawful for all purposes. That is not entirely correct.

Under planning legislation in Ireland, a planning authority is generally restricted from initiating enforcement proceedings after seven years have passed from the date of the unauthorised development. 

In practical terms, this means the local authority may no longer be able to compel the removal or alteration of the structure through enforcement proceedings once the relevant time period has expired.

However, this does not mean the development suddenly becomes authorised or regularised. The structure remains an unauthorised development from a planning perspective, and significant consequences can still arise, notwithstanding the expiry of the enforcement period.

One major issue can arise where lands or property become subject to a compulsory purchase order (CPO). Compensation under a CPO is generally assessed by reference to the lawful value of the property and lawful use of the lands or structures concerned. 

If a building or extension is unauthorised, difficulties may arise in seeking compensation in respect of that portion of the property. In some circumstances, compensation may be reduced or unavailable entirely in respect of unauthorised structures.

A further practical difficulty is that unauthorised development can create problems when applying for future planning permission. If a property already contains unauthorised works, a planning authority may refuse permission for additional development until the planning status of the existing structures is addressed. This can significantly restrict future development potential.

For example, a person may wish to extend a dwelling, construct agricultural buildings, subdivide lands, or apply for retention and upgrading works. Existing unauthorised development on the property may complicate or delay the process and can affect how the planning authority assesses the overall application.

Unauthorised development can also create difficulties when selling or mortgaging property. 

Lending institutions and purchasers will generally require confirmation that all structures on the property have the benefit of planning permission, or are otherwise exempt from planning requirements. Where this cannot be established, issues can arise with title, valuation, and lending approval.

It is also important to understand that not all works require planning permission. Certain developments may qualify as exempted development under planning legislation. In the case of residential properties, homeowners may carry out certain works without planning permission provided specific criteria are met.

By way of example, an extension constructed to the rear of a dwelling may qualify as exempt development where the floor area does not exceed the statutory threshold, currently 40sq m in total, and provided other conditions relating to height, open space, and windows are satisfied. 

Exempted development provisions are more restrictive in relation to structures to the front or side of a property, particularly where they would materially alter the external appearance of the dwelling.

Similarly, certain agricultural structures may qualify as exempted development, subject to size limitations, usage requirements, and distance rules from neighbouring properties and public roads.

However, exempted development provisions are technical and should never be assumed to apply without proper consideration. A mistaken belief that works are exempt can lead to substantial difficulties years later.

The key point is while the expiry of the seven-year enforcement period may provide some protection against enforcement action, it does not eliminate the legal consequences of unauthorised development. Property owners should be cautious about relying solely on the so-called “seven-year rule”, and should carefully consider the long-term implications for compensation, future planning applications, lending, and saleability of the property. 

The cure for this would be to apply for a retention planning permission, which would bring the property within compliance.

Alex Krupa is a solicitor practising in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

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Web: www.walshandpartners.ie 

While every care is taken to ensure accuracy of information contained in this article, solicitor Alex Krupa does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.