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30 2000

PLANNING AND DEVELOPMENT ACT, 2000

PART VIII

Enforcement

Offence.

151. —Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.

Warning letter.

152. —(1) Where—

(a) a representation in writing is made to a planning authority by any person that unauthorised development may have been, is being or may be carried out, and it appears to the planning authority that the representation is not vexatious, frivolous or without substance or foundation, or

(b) it otherwise appears to the authority that unauthorised development may have been, is being or may be carried out,

the authority shall issue a warning letter to the owner, the occupier or any other person carrying out the development and may give a copy, at that time or thereafter, to any other person who in its opinion may be concerned with the matters to which the letter relates.

(2) Notwithstanding subsection (1), where the development in question is of a trivial or minor nature the planning authority may decide not to issue a warning letter.

(3) A planning authority shall issue the warning letter under subsection (1) as soon as may be but not later than 6 weeks after receipt of the representation under subsection (1).

(4) A warning letter shall refer to the land concerned and shall—

(a) state that it has come to the attention of the authority that unauthorised development may have been, is being or may be carried out,

(b) state that any person served with the letter may make submissions or observations in writing to the planning authority regarding the purported offence not later than four weeks from the date of the service of the warning letter,

(c) state that when a planning authority considers that unauthorised development has been, is being or may be carried out, an enforcement notice may be issued,

(d) state that officials of the planning authority may at all reasonable times enter on the land for the purposes of inspection,

(e) explain the possible penalties involved where there is an offence, and

(f) explain that any costs reasonably incurred by the planning authority in relation to enforcement proceedings may be recovered from a person on whom an enforcement notice is served or where court action is taken.

Decision on enforcement.

153. —(1) As soon as may be after the issue of a warning letter under section 152 , the planning authority shall make such investigation as it considers necessary to enable it to make a decision on whether to issue an enforcement notice.

(2) (a) It shall be the duty of the planning authority to ensure that decisions on whether to issue an enforcement notice are taken as expeditiously as possible.

(b) Without prejudice to the generality of paragraph (a), it shall be the objective of the planning authority to ensure that the decision on whether to issue an enforcement notice shall be taken within 12 weeks of the issue of a warning letter.

(3) A planning authority, in deciding whether to issue an enforcement notice shall consider any representations made to it under section 152 (1)(a) or submissions or observations made under section 152 (4)(b) and any other material considerations.

(4) The decision made by the planning authority under subsection (1) including the reasons for it shall be entered by the authority in the register.

(5) Failure to issue a warning letter under section 152 shall not prejudice the issue of an enforcement notice or any other proceedings that may be initiated by the planning authority.

Enforcement notice.

154. —(1) (a) Where a decision to enforce is made under section 153 or where urgent action is required under section 155 , the planning authority shall, as soon as may be, serve an enforcement notice under this section.

(b) Where an enforcement notice is served under this section, the planning authority shall notify any person who made representations under section 152 (1)(a) and any other person, who in the opinion of the planning authority may be concerned with the matter to which the notice concerned relates, not being a person on whom the enforcement notice was served, of the service of the enforcement notice.

(2) Where the planning authority decides not to issue an enforcement notice, it shall notify any person to whom the warning letter was copied under section 152 and any other person who made a representation under that section of the decision in writing within 2 weeks of the making of that decision.

(3) (a) An enforcement notice under subsection (1) shall be served on the person carrying out the development and, where the planning authority considers it necessary, the owner or the occupier of the land or any other person who, in the opinion of the planning authority, may be concerned with the matters to which the notice relates.

(b) If, subsequent to the service of the enforcement notice, the planning authority becomes aware that any other person may be carrying out development or is an owner or occupier of the land or may be affected by the notice, the notice may be served on that person and the period specified for compliance with the notice shall be extended as necessary to a maximum of 6 months, and the other person or persons on whom the notice had previously been served under paragraph (a) shall be informed in writing.

(4) An enforcement notice shall take effect on the date of the service thereof.

(5) An enforcement notice shall refer to the land concerned and shall—

(a)       (i) in respect of a development where no permission has been granted, require that development to cease or not to commence, as appropriate, or

(ii) in respect of a development for which permission has been granted under Part III, require that the development will proceed in conformity with the permission, or with any condition to which the permission is subject,

(b) require such steps as may be specified in the notice to be taken within a specified period, including, where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, in so far as is practicable, the restoration of the land to its condition prior to the commencement of the development,

(c) warn the person or persons served with the enforcement notice that, if within the period specified under paragraph (b) or within such extended period (not being more than 6 months) as the planning authority may allow, the steps specified in the notice to be taken are not taken, the planning authority may enter on the land and take such steps, including the removal, demolition or alteration of any structure, and may recover any expenses reasonably incurred by them in that behalf,

(d) require the person or persons served with the notice to refund to the planning authority the costs and expenses reasonably incurred by the authority in relation to the investigation, detection and issue of the enforcement notice concerned and any warning letter under section 152 , including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and the planning authority may recover these costs and expenses incurred by it in that behalf, and

(e) warn the person or persons served with the enforcement notice that if within the period specified by the notice or such extended period, not being more than 6 months, as the planning authority may allow, the steps specified in the notice to be taken are not taken, the person or persons may be guilty of an offence.

(6) If, within the period specified under subsection (5)(b) or within such extended period, not being more than 6 months, as the planning authority may allow, the steps specified in the notice to be taken are not taken, the planning authority may enter on the land and take such steps, including the demolition of any structure and the restoration of land, and may recover any expenses reasonably incurred by it in that behalf.

(7) Any expenses reasonably incurred by a planning authority under paragraphs (c) and (d) of subsection (5) and subsection (6) may be recovered—

(a) as a simple contract debt in any court of competent jurisdiction from the person or persons on whom the notice was served, or

(b) secured by—

(i) charging the land under the Registration of Title Act, 1964 , or

(ii) where the person on whom the enforcement notice was served is the owner of the land, an instrument vesting the ownership of the land in the authority subject to a right of redemption by the owner within five years.

(8) Any person on whom an enforcement notice is served under subsection (1) who fails to comply with the requirements of the notice (other than a notice which has been withdrawn under subsection (11)(a) or which has ceased to have effect) within the specified period or within such extended period as the planning authority may allow, not exceeding 6 months, shall be guilty of an offence.

(9) Any person who knowingly assists or permits the failure by another to comply with an enforcement notice shall be guilty of an offence.

(10) Particulars of an enforcement notice shall be entered in the register.

(11) (a) A planning authority may for stated reasons by notice in writing to any person served with the notice, and, where appropriate, any person who made a representation under section 152 (1)(a), withdraw an enforcement notice served under this section.

(b) Where an enforcement notice is withdrawn pursuant to this subsection by a planning authority or where a planning authority finds that an enforcement notice has been complied with, the fact that the enforcement notice was withdrawn and the reason for the withdrawal or that it was complied with, as appropriate, shall be recorded by the authority in the register.

(12) An enforcement notice shall cease to have effect 10 years from the date of service of the notice under subsection (1) or, if a notice is served under subsection (3)(b), 10 years from the date of service of the notice under that subsection.

(13) A person shall not question the validity of an enforcement notice by reason only that the person or any other person, not being the person on whom the enforcement notice was served, was not notified of the service of the enforcement notice.

(14) A report of a local authority under section 50 of the Local Government Act, 1991 , shall contain details of the number of enforcement notices issued under this section, warning notices issued under section 153 , prosecutions brought under section 157 and injunctions sought under section 160 by that authority.

Issue of enforcement notice in cases of urgency.

155. —(1) Where, in the opinion of the planning authority, due to the nature of an unauthorised development and to any other material considerations, it is necessary to take urgent action with regard to the unauthorised development, notwithstanding sections 152 and 153, it may serve an enforcement notice under section 154 .

(2) Where an enforcement notice is issued in accordance with subsection (1), any person who made a representation under section 152(1)(a) shall be notified in writing within two weeks of the service of the notice.

Penalties for offences.

156. —(1) A person who is guilty of an offence under sections 58(4), 63, 151, 154, 205, 230(3), 239 and 247 shall be liable—

(a) on conviction on indictment, to a fine not exceeding £10,000,000, or to imprisonment for a term not exceeding 2 years, or to both, or

(b) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 6 months, or to both.

(2) Where a person is convicted of an offence referred to in subsection (1) and there is a continuation by him or her of the offence after his or her conviction, he or she shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—

(a) on conviction on indictment, to a fine not exceeding £10,000 for each day on which the offence is so continued, or to imprisonment for a term not exceeding 2 years, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 2 years, or

(b) on summary conviction, to a fine not exceeding £400 for each day on which the offence is so continued or to imprisonment for a term not exceeding 6 months, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 6 months.

(3) Where a person is convicted of an offence referred to in subsection (1) involving the construction of an unauthorised structure, the minimum fine shall be—

(a) on conviction on indictment, the estimated cost of the construction of the structure or £10,000, whichever is less, or

(b) on summary conviction, the estimated cost of the construction of the structure or £500, whichever is less,

except where the person convicted can show to the court's satisfaction that he or she does not have the necessary financial means to pay the minimum fine.

(4) Any person who is guilty of an offence under this Act other than an offence referred to in subsection (1) (or a further offence under subsection (2)) shall be liable, on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both.

(5) If the contravention in respect of which a person is convicted under section 46 (11), 208(2)(b) or 252(9) is continued after the conviction, that person shall be guilty of a further offence on every day on which the contravention continues and for each such offence he or she shall be liable on summary conviction to a fine not exceeding £400.

(6) In a prosecution for an offence under sections 151 and 154 it shall not be necessary for the prosecution to show, and it shall be assumed until the contrary is shown by the defendant, that the subject matter of the prosecution was development and was not exempted development.

(7) Where an enforcement notice has been served under section 154 , it shall be a defence to a prosecution under section 151 or 154 if the defendant proves that he or she took all reasonable steps to secure compliance with the enforcement notice.

(8) On conviction of an offence under section 154 , the court may, in addition to imposing the penalties specified in subsections (1) and (2), order the person convicted to take the steps specified in the enforcement order to be taken.

Prosecution of offences.

157. —(1) Subject to section 149 , summary proceedings for an offence under this Act may be brought and prosecuted by a planning authority whether or not the offence is committed in the authority's functional area.

(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, and subject to subsection (3) of this section, summary proceedings may be commenced—

(a) at any time within 6 months from the date on which the offence was committed, or

(b) at any time within 6 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify proceedings comes to that person's knowledge,

whichever is the later.

(3) For the purposes of this section, a certificate signed by or on behalf of the person initiating the proceedings as to the date or dates on which evidence described in subsection (2)(b) came to his or her knowledge shall be evidence of the date or dates and in any legal proceedings a document purporting to be a certificate under this section and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

(4) (a) No warning letter or enforcement notice shall issue and no proceedings for an offence under this Part shall commence—

(i) in respect of a development where no permission has been granted, after seven years from the date of the commencement of the development;

(ii) in respect of a development for which permission has been granted under Part III, after seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period within the meaning of section 40 or, as the case may be, of the period as extended under section 42 .

(b) Notwithstanding paragraph (a), proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject.

(c) It shall be presumed until the contrary is proved that proceedings were commenced within the appropriate period.

(5) Proceedings for other offences under this Act shall not be initiated later than 7 years from the date on which the offence concerned was alleged to have been committed.

Offences by bodies corporate.

158. —(1) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of a person being a director, manager, secretary or other officer of the body or a person who was purporting to act in any such capacity, that person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.

Payment of fines to planning authorities.

159. —Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under this Act, it shall provide by order for the payment of the amount of the fine to the planning authority and the payment may be enforced by the authority as if it were due to it on foot of a decree or order made by the court in civil proceedings.

Injunctions in relation to unauthorised development.

160. —(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.

(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.

(3)   (a)   An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.

(b) Subject to section 161 , the order by which an application under this section is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(4)   (a)   Rules of court may provide for an order under this section to be made against a person whose identity is unknown.

(b) Any relevant rules of Court made in respect of section 27 (inserted by section 19 of the Act of 1992) of the Act of 1976 shall apply to this section and shall be construed to that effect.

(5)   (a)   An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land which is the subject of the application is situated.

(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section where the rateable valuation of the land which is the subject of the application does not exceed £200.

(c) The Circuit Court may, for the purposes of paragraph (b), in relation to land that has not been given a rateable valuation or is the subject with other land of a rateable valuation, determine that its rateable valuation would exceed, or would not exceed, £200.

(d) Where the rateable valuation of any land which is the subject of an application under this section exceeds £200, the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court by order.

(6)   (a)   An application to the High Court or Circuit Court for an order under this section shall not be made—

(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or

(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40 ) or, as the case may be, of the appropriate period as extended under section 42 .

(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.

(7) Where an order has been sought under this section, any other enforcement action under this Part may be commenced or continued.

Costs of prosecutions and applications for injunctions.

161. —(1) The court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay—

(a) where a person is convicted of an offence under this Part, to the planning authority, or

(b) where the person is the subject of an order under section 160 , to the planning authority or to any other person as appropriate,

the costs and expenses of the action, measured by the court.

(2) Where costs or expenses are to be paid to the authority, they shall include any such costs or expenses reasonably incurred by the authority in relation to the investigation, detection and prosecution of the offence or order, as appropriate, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers.

Evidence of permission.

162. —(1) In any proceedings for an offence under this Act, the onus of proving the existence of any permission granted under Part III shall be on the defendant.

(2) Notwithstanding subsection (1) of this section, it shall not be a defence to a prosecution under this Part if the defendant proves that he or she has applied for or has been granted permission under section 34 (12)

(a) since the initiation of proceedings under this Part,

(b) since the date of the sending of a warning letter under section 152 , or

(c) since the date of service of an enforcement notice in a case of urgency in accordance with section 155 .

(3) No enforcement action under this Part (including an application under section 160 ) shall be stayed or withdrawn by reason of an application for retention of permission under section 34 (12) or the grant of that permission.

Permission not required for any works required under this Part.

163. —Notwithstanding Part III, permission shall not be required in respect of development required by a notice under section 154 or an order under section 160 (disregarding development for which there is in fact permission under Part III).

Transitional arrangements for offences.

164. —Notwithstanding any repeal of any enactment (“repealed enactment”) by this Act, where proceedings have been initiated in respect of any offence under the repealed enactment, or an enforcement notice or a warning notice (within the meaning of the relevant provisions) has issued under any provision of the repealed enactment, or an application to a Court has been made under section 27 of the Act of 1976, the relevant provision which applied before the repeal shall continue to so apply until the proceedings have been finalised, the notices complied with or withdrawn or the application determined, as the case may be.